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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 GARY P. SHAFFER, Ph.D.,


Department of Biological Sciences, SLU 10736,
Southeastern Louisiana University, Hammond,
Louisiana 70402, taken in the offices of Bruno &
Bruno, 855 Baronne Street, New Orleans, Louisiana
70113, on Thursday, the 29th day of January,
2009, beginning at 9:20 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
AND

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


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1 APPEARANCES CONTINUED: 1 INDEX
2 THE LAW OFFICE OF JOSEPH M. BRUNO 2
(BY: L. SCOTT JOANEN) 3 EXAMINATION BY: PAGE
3 855 Baronne Street 4 MS. MILLER 7
New Orleans, Louisiana 70113
4
5
ATTORNEYS FOR THE PLAINTIFFS 6 EXHIBITS:
5 7 Shaffer Exhibit Number 1 15
6 UNITED STATES DEPARTMENT OF JUSTICE Notice of Videotaped Deposition
(BY: SARAH SOJA) 8
7 1331 Pennsylvania Avenue, N.W. Shaffer Exhibit Number 2 135
Post Office Box 888 9 Habitat data
8 Benjamin Franklin Station 10 Shaffer Exhibit Number 3 139
Washington, D.C. 20044 Stem density grid
9
11
ATTORNEY FOR THE DEPARTMENT OF
10 JUSTICE AND THE ARMY CORPS OF Shaffer Exhibit Number 4 166
ENGINEERS 12 Photograph
11 NED-275-000000095
12 UNITED STATES DEPARTMENT OF JUSTICE 13
(BY: KARA K. MILLER) Shaffer Exhibit Number 5-A 191
13 1331 Pennsylvania Avenue, N.W. 14 Figure 4.2 Habitat Map - 1950s
Post Office Box 888 15 Shaffer Exhibit Number 5-B 191
14 Benjamin Franklin Station Figure 4.3 Habitat Map - 1960s
Washington, D.C. 20044
15
16
ATTORNEY FOR THE UNITED STATES Shaffer Exhibit Number 5-C 191
16 CORPS OF ENGINEERS 17 Figure 4.4 Habitat Map - 2000s
17 18 Shaffer Exhibit Number 6 258
CHAFFE McCALL Photograph
18 (BY: JESSICA K. WOODRUFF) 19 NED-275-000000074
Suite 2300 20 Shaffer Exhibit Number 7 260
19 1100 Poydras Street Photograph
New Orleans, Louisiana 70163-2300 21 NED-275-000000077
20
ATTORNEYS FOR LAFARGE N.A.
22 Shaffer Exhibit Number 8 261
21 Photograph
22 23 NED-275-000000079
23 24 Shaffer Exhibit Number 9 263
24 Photograph
25 25 NED-275-000000083
Page 3 Page 5
1 APPEARANCES CONTINUED: 1 INDEX
2 ALSO PRESENT: 2
3 DAVID R. DYER
Assistant District Counsel
3 EXHIBITS: PAGE
4 Office of Counsel 4 Shaffer Exhibit Number 10 268
CEMVN-OC Photographs
5 UNITED STATES ARMY CORPS OF ENGINEERS 5 NED-275-000000085 - 000000086
Post Office Box 60267 6 Shaffer Exhibit Number 11 285
6 New Orleans, Louisiana 70160-0267
7 ASHLEY GREMILLION COKER Photograph mosaic
SHER GARNER CAHILL RICHTER KLEIN & HILBERT 7
8 28th Floor Shaffer Exhibit Number 12 293
909 Poydras Street 8 Map
9 New Orleans, Louisiana 70112
10 JOHN DAY, Ph.D.
9 Shaffer Exhibit Number 13 304
11 Unidentified documents
12 10
VIDEOTAPED BY: 11
13 12
JOHN WADSWORTH
14 Legal Video Specialist
13
HART VIDEO OF LOUISIANA, L.L.C. 14
15 Bay 5 15
1185 Robert Boulevard 16
16 Slidell, Louisiana 70458 17
17
18 18
19 19
20 20
21 21
22
22
23 REPORTED BY:
24 CAROL VALLETTE SLATER 23
Certified Court Reporter 24
25 Registered Professional Reporter 25

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1 STIPULATION 1 yesterday at Dr. Day's deposition. I represent
2 IT IS STIPULATED AND AGREED by and 2 the United States in this litigation, Robinson v.
3 between counsel for the parties hereto that the 3 United States.
4 deposition of the aforementioned witness is 4 Have you had your deposition taken
5 hereby being taken under the Federal Rules of 5 before?
6 Civil Procedure, for all purposes, in accordance 6 A. Yes.
7 with law; 7 Q. In this litigation or other cases?
8 That the formalities of reading and 8 A. Other cases.
9 signing are specifically not waived; 9 Q. Okay. So, you understand that I
10 That the formalities of sealing, 10 will be asking you questions and you're under
11 certification and filing are specifically waived; 11 oath to answer those truthfully and completely?
12 That all objections, save those as 12 A. Yes.
13 to the form of the question and the responsiveness 13 Q. And if you do not understand a
14 of the answer, are hereby reserved until such 14 question or do not hear the complete question,
15 time as this deposition, or any part thereof, may 15 you will let me know?
16 be used or sought to be used in evidence. 16 A. Correct.
17 17 Q. Okay. And if you do not indicate
18 * * * * 18 that you don't understand the question, I will
19 19 assume that you have heard it and understand it.
20 CAROL VALLETTE SLATER, Certified 20 Is that fair?
21 Court Reporter, Registered Professional Reporter, 21 A. Very good.
22 in and for the Parish of Orleans, State of 22 Q. Okay. And, also, please make sure
23 Louisiana, officiated in administering the oath 23 to answer all of the questions with a verbal
24 to the witness. 24 response rather than a shaking of the head or
25 25 that sort of movement. And, also, please try to
Page 7 Page 9
1 THE VIDEOGRAPHER: 1 let me finish my question before you begin your
2 We're on the record. This 2 answer, and I will do the same for your
3 is the deposition of Dr. Shaffer 3 responses. Is that okay?
4 taken in the matter of Katrina 4 A. Seek to understand and be
5 Canal Breaches Consolidated 5 understood.
6 Litigation, Robinson case. We are 6 Q. Okay. Is there any reason that you
7 at the office of Bruno & Bruno, 7 cannot testify today?
8 located at 855 Baronne Street, 8 A. No.
9 Third Floor, New Orleans, 9 Q. You haven't taken any medication
10 Louisiana. This is Thursday, 10 or -- that would impact your ability to testify?
11 January 29th, 2009. We're 11 A. Absolutely not.
12 commencing at 9:16 a.m. My name 12 Q. Okay. If something happens during
13 is John Wadsworth. The court 13 the day that prevents you from continuing to
14 reporter is Carol Vallette, with 14 testify, you will let us know?
15 Johns Pendleton. 15 A. Yes.
16 Would Counsel please 16 Q. Okay. If you need to take a break
17 introduce themselves? 17 at any time, let me know that as well, and we
18 (Introduction of Counsel.) 18 will do that. And I understand that you need to
19 GARY P. SHAFFER, Ph.D., 19 take a break for a meeting. You'll need to leave
20 after being first duly sworn in the cause by the 20 about ten after 12:00; is that right?
21 court reporter, testified as follows: 21 A. Correct.
22 EXAMINATION BY MS. MILLER: 22 Q. Okay. All right. Would you state
23 Q. Dr. Shaffer, good morning. 23 your full name for the record?
24 A. Good morning. 24 A. Gary Paul Shaffer.
25 Q. My name is Kara Miller. We met 25 Q. And how are you currently employed?
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1 A. Southeastern Louisiana University, 1 from, statistics, probably from another Barras,
2 and I also have a company called Wetland 2 maybe '94. Declaration of Bob Bea. And in here
3 Resources, L.L.C. 3 is mostly older material. Here's something on
4 Q. What is Wetland Resources, L.L.C.? 4 stem density with a table from a pending
5 A. A consulting company. 5 publication coming out this year. An old -- from
6 Q. Is that a company that you're an 6 the '50s -- Department of Interior. This, again,
7 owner of? 7 is -- yesterday, you were asking us where we got
8 A. Yeah. Part owner. Partner. I have 8 the information, quotes from people and such.
9 two partners. 9 They came in very scattered. In truth, we
10 Q. And how long has that company been 10 never -- I never saw that binder that had
11 in existence? 11 everything compiled. Everything came in, like
12 A. It's brand-new. 12 two hours, today, two days apart. This is what
13 Q. Brand-new as of what date? 13 it looks like. I get faxes. And John was in
14 A. Probably officially October, 2008. 14 Europe during that entire time. So, that's why I
15 Q. Okay. Have you -- it looks like you 15 had to deal with this part of it. Here's our
16 have a stack of documents in front of you. Can 16 first expert report.
17 you tell me what you've brought with you today? 17 Q. I'm sorry. By John, do you mean
18 A. This is a very reduced stack of 18 John Day?
19 information, and I intend to use none of it other 19 A. I'm sorry. Dr. Day.
20 than the report that's on top, but I thought that 20 Q. We have an attorney Jon, so, I'd
21 if something was necessary, I'd just know where 21 like to clarify.
22 to find it. It's the same stack I brought 22 A. Dr. Day.
23 yesterday. 23 This is our first report, the short
24 Q. Okay. Would you mind just 24 one. And this is John's original deposition.
25 identifying each of those documents? 25 Here are some NEPA mandates. Design memorandum.
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1 A. First is the long report, here's our 1 Not even sure -- we were just given this
2 supplemental. I will put them upside down so -- 2 recently. I haven't actually looked at it yet.
3 then, we have the 1930s map from FitzGerald. 3 MR. ANDRY:
4 Here's Claire Brown. Penfound and Hathaway. 4 What is that? Let me see
5 Army Corps 1999 report, impacts of MRGO. And 5 that.
6 then I've got Del Britsch's and John Barras' 6 THE WITNESS:
7 expert reports. Deposition of Henry Rodriguez. 7 I didn't get to it.
8 Q. What is the date of that deposition? 8 A. And here's our supplemental report.
9 A. April 30th, 2008. And -- 9 Here are the very same stem densities. So, I
10 Q. Is that a deposition taken in this 10 have two copies of that. And then our reference
11 litigation? 11 location figure. Dredge spoil. Wicker, et al,
12 A. Yes. 12 1982. And that's it.
13 Couple of pages of statistics. 13 EXAMINATION BY MS. MILLER:
14 Declaration of Paul Kemp. 14 Q. And this stack of things over here
15 Q. What is the date of the Kemp 15 are just additional copies of --
16 declaration? 16 A. Yesterday, we had wanted
17 A. It doesn't appear to have a date. I 17 enlargements of the supplemental photographs.
18 think it's December of 2008, though. 18 They're scrambled right now, but I'll have them
19 Plaintiffs' statement of uncontested 19 ready before you need them.
20 facts. Also doesn't appear to have a date on the 20 Q. Okay. And these are -- are these
21 front. This says Katrina Canal Breaches 21 copies that we can -- can mark on if we need to?
22 Consolidated Litigation. This is a Barras, et al 22 A. Absolutely.
23 land loss document. Plaintiffs' memorandum of 23 Q. Thank you for bringing those. That
24 points. Declaration of Pierce O'Donnel. More 24 will be helpful.
25 statistics. I don't even know where these came 25 MS. MILLER:
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1 I'd like to get a copy of 1 it, there's an Exhibit A that asks you to bring
2 that stack of information, or the 2 certain things to this deposition.
3 items that we don't already have, 3 MR. ANDRY:
4 such as the statistics on stem 4 Consistent with yesterday, I
5 density and -- 5 object to the deposition notice as
6 MR. ANDRY: 6 there was an agreement with
7 To the extent you don't have 7 Counsel specifically Robin Smith
8 them and to the extent that 8 and Joe Bruno, regarding the
9 they're -- I haven't looked 9 production of information
10 through his stack. To the extent 10 pertaining to expert reports and
11 that they're not work product or 11 all of that information has been
12 something, we'll provide that. 12 produced. Information he's got,
13 EXAMINATION BY MS. MILLER: 13 he didn't bring as a production.
14 Q. Are these items that you -- 14 He just brought it. But to the
15 A. I'd be happy to take these off of 15 extent that you go through the
16 here and just -- I don't really need any of this 16 notice and ask him what he brought
17 stuff. I don't know why I even brought it in. 17 in conjunction with it, he didn't
18 Q. Are these items that you relied on 18 bring anything in conjunction with
19 in the preparation of your expert report? 19 it except his supplemental report,
20 A. Yes. 20 is my understanding, based on the
21 MS. MILLER: 21 agreement with Counsel that's
22 Okay. In that case, I would 22 already been made. So, based on
23 like to get copies. 23 that, we object -- we will allow
24 MR. ANDRY: 24 the notice to be attached, but
25 Well, to the extent they're 25 object to the asking him to
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1 considered discoverable, we will 1 produce documents because there
2 provide you copies, and to the 2 are prior agreements with Counsel.
3 extent you don't have them. 3 MS. MILLER:
4 THE WITNESS: 4 At this point, I haven't
5 You already have all of 5 asked the question, but I
6 these except for the little page 6 appreciate you letting us know in
7 on the stem densities. I believe 7 advance what your objection will
8 that we've already supplied 8 be.
9 everything in this pile. 9 EXAMINATION BY MS. MILLER:
10 MS. MILLER: 10 Q. Other than the stack of materials in
11 Okay. Well, we will 11 front of you that we just went through, did you
12 determine that. 12 bring anything else to the deposition today?
13 EXAMINATION BY MS. MILLER: 13 A. Computer.
14 Q. Okay. Just for purposes of the 14 Q. All right. And other than the
15 record, I'd like to introduce the deposition 15 supplemental report that was introduced by Dr.
16 notice. I'm marking this as Shaffer 1. Have you 16 Day yesterday, have you prepared any additional
17 seen that before? 17 supplements to your July, 2008 expert report?
18 (Whereupon, Shaffer Exhibit 18 A. No.
19 Number 1 was marked for 19 Q. And do you have any intention to
20 identification.) 20 produce additional supplements to that report?
21 A. No. Or, at least, I don't remember 21 A. If new information becomes
22 seeing it before. 22 available. For instance, these photographs came
23 EXAMINATION BY MS. MILLER: 23 out of the blue and, so, that could happen again
24 Q. Okay. That's just the notice 24 somehow.
25 setting the deposition for today. On Page 3 of 25 Q. So, the photographs that you
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1 attached to your supplemental expert report, you 1 copy. And, so, he had taken several.
2 had not been shown prior to -- well, when were 2 Q. Okay. So, the photos that Paul Kemp
3 you first shown those photographs? 3 did not take to his deposition, you were shown by
4 A. About a week ago. 4 Ivor van Heerden last week?
5 Q. Was that -- so, yesterday, Dr. Day 5 A. Correct.
6 described a meeting that occurred on Monday of 6 Q. Okay. And are all of the photos --
7 this week. Were you present at that meeting? 7 are there any photos that you were shown by Ivor
8 A. Yes. 8 van Heerden that -- last week that were not
9 Q. And that was the meeting between 9 attached to your supplemental report?
10 yourself, Dr. Day, Jonathan Andry; is that 10 A. I think he only showed us -- there's
11 correct? 11 more photos than this on a CD, but we didn't look
12 A. Yes. 12 at the CD. We just looked at the hard copies.
13 Q. And were there other people present? 13 Q. Okay. So, you only looked at the
14 A. Yes. 14 hard copies that Ivor van Heerden selected from
15 Q. Who were those other people? 15 the CD?
16 A. Jerry was here, Joe Bruno was here 16 A. Correct.
17 in the morning. Rob Warren came in and out 17 Q. Okay. Prior to seeing these photos
18 several times. Mostly just staff here. Ivor van 18 last week, what other photographs had you
19 Heerden was there. Sarah Mack -- Dr. Mack. John 19 reviewed for this litigation?
20 Day. 20 A. The lawyers provided us with 266
21 Q. Okay. Was there anyone else you can 21 black-and-white historic photos, which several
22 remember being here? 22 people went through and decided which ones were
23 A. I think that was -- well, Jon -- Jon 23 the most appropriate.
24 Andry. 24 Q. By "several people," do you mean --
25 Q. And before -- at the meeting on 25 A. Dr. Day, myself, Dr. Mack, I suspect
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1 Monday, did you discuss these photographs that 1 Ivor van Heerden, Paul Kemp.
2 you attached to your supplemental expert report? 2 Q. And do you know where the attorneys
3 A. Yes. 3 obtained those 266 photographs?
4 Q. Was that the -- had you seen the 4 A. No.
5 photographs before that meeting? 5 Q. Were you given any CDs that
6 A. Yes. 6 contained the photographs, or were these on hard
7 Q. So, you think it was the week before 7 copy --
8 this last week that you first saw the 8 A. Yes, that was one of the problems.
9 photographs? 9 It was a CD, and when we tried to print this
10 A. Yeah, the end of that week. 10 report, neither Dr. Mack nor I could get the --
11 Q. Okay. Do you remember which day? 11 them to print. Hence, the disk that you were
12 A. It wasn't a teaching day, so, it was 12 asking about yesterday -- the only thing we could
13 either probably last Wednesday, Monday or Friday. 13 deliver to the lawyers was the disk of the
14 I'm going to say Wednesday. 14 photographs because they wouldn't print for us.
15 Q. How were they provided to you? 15 They were nonprintable. These guys figured
16 A. Ivor van Heerden. 16 out -- these guys, being the lawyers, figured out
17 Q. And did -- how many photographs did 17 how to get them printed. So, the version of our
18 he show you at that time? 18 report that actually came out had paper copies,
19 A. Actually, fewer than we have here 19 and we didn't know if they could make paper
20 because Paul Kemp had a subset of them for his 20 copies or not, and that's the reason why we had
21 deposition. 21 that disk, that supplemental disk. The reason
22 Q. Can you explain that? I'm not 22 for Appendix E supplemental disk is because Dr.
23 following exactly what you're saying. 23 Mack and I could not figure out how to print what
24 A. So, Paul Kemp also used the very 24 we needed to print. Yesterday, you were asking
25 same photos. At that point, there was only one 25 about where is this disk. So, since they got
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1 them onto paper, we didn't need the disk anymore. 1 was our argument, what did we need in the report,
2 Q. Okay. So, the only thing that's 2 what didn't we need in the report.
3 contained on the disk that's referenced in your 3 Q. And at that time, what did you think
4 report are the photographs that are also now 4 was your argument?
5 printed in hard copy as part of your July, 2008 5 A. That -- primary argument? There are
6 report? 6 several, but our primary argument was that once
7 A. To my knowledge. 7 the Bayou La Loutre Ridge got cut, a lethal
8 Q. Okay. In terms, though, of the 8 injection of salinity was offered to those
9 photographs you were reviewing when you prepared 9 wetlands, 28,000 acres plus.
10 your expert report, were there any photographs 10 Q. What are your secondary or other
11 besides the 266 that you received from 11 arguments?
12 plaintiffs' counsel? 12 A. Those wetlands were hugely impacted
13 A. No. 13 by the massive conduit that was directed towards
14 Q. Did you yourself go to the library 14 the heart of New Orleans and especially due to
15 to research historical photography? 15 the operations and maintenance; its widening from
16 A. No. 16 650 feet to 1,500 feet, on average, 2,000 to
17 Q. Did you -- before working on this 17 3,000 feet in places; placement of dredge spoil
18 litigation, had you reviewed any of the 266 18 on 17,000 acres repeatedly.
19 photographs provided by the attorneys? 19 Q. By the "wetlands were hugely
20 A. No. 20 impacted," what do you mean by that?
21 Q. And before working on this 21 A. Cypress swamp was killed, fresh
22 litigation, had you seen any of the photographs 22 marsh either killed or converted to open water or
23 attached to your supplemental expert report? 23 brackish marsh or salt marsh.
24 A. No. 24 Q. Were there any other impacts?
25 Q. Okay. Maybe you can describe how 25 A. Yes. Turbidity -- increased
Page 23 Page 25
1 you became involved in this litigation. 1 turbidity due to the dredge spoil, heavy metals
2 A. I got a call from Dr. Day and he 2 placed in the water column, decreased water
3 asked me if I would join the team. 3 quality, hundred-square-mile dead zone created in
4 Q. When was that? 4 Lake Pontchartrain. Peripheral wetlands, like
5 A. Good question. It was a while ago. 5 LaBranche, Manchac, Maurepas Swamp, increased
6 About a year and a half. 6 salinities. Those are much more difficult to
7 Q. So, sometime in 2007? 7 quantify. Hence, we honed in on, primarily, the
8 A. Correct. 8 Golden Triangle in the Central Wetlands Unit.
9 Q. Do you remember what time of year 9 Q. I'm sorry. What is it that's harder
10 2007? 10 to quantify that you just referred to?
11 A. Well, we started heavily researching 11 A. The farther away that you get from
12 that summer -- at least, I started. John had 12 the MRGO, the more difficult it is to quantify
13 been working on the case considerably longer. 13 direct and indirect impacts, because there are
14 But when it came time to start pulling things 14 many other things taking place, as in Barras' and
15 together for our report, that's when I kicked in. 15 Del Britsch's report, subsidence, cutting off the
16 Q. And that was for the report that you 16 levee, cutting off the Mississippi River
17 and Dr. Day produced jointly in September of 17 freshwater nutrients and sediment inputs, things
18 2007? 18 like that. Those are all intertwined the further
19 A. Correct. 19 away you get from MRGO. But do we know that the
20 Q. And what sort of research were you 20 Maurepas Swamp was impacted by MRGO? Absolutely.
21 doing at that time for the September, 2007 21 Q. Would you consider the impacts on
22 report? 22 the Maurepas Swamp to be direct or indirect
23 A. Looking for historic information, 23 impacts from the MRGO?
24 characterizing the Central Wetlands, getting land 24 A. Increased salinity is direct, but it
25 loss statistics, putting together what we thought 25 depends on how you want to define "direct." I

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1 mean, the direct impact of MRGO can very easily 1 because we definitely know that the salinity got
2 say 24,150-acre footprint. That's really direct. 2 increased there, but there are so many other
3 But injecting saltwater into a wetland, I 3 features going on there that you couldn't go and
4 believe, is also direct. 4 say 15 percent or something like that.
5 Q. Okay. So, how do you define direct 5 Everything interacts the farther away you get
6 impacts of the MRGO? 6 from the conduit.
7 A. Again, the most obvious direct 7 Q. What are the other things
8 impact is knifing an enormous canal through the 8 interacting at the LaBranche Wetlands?
9 wetlands. Those are obviously gone. Then, 9 A. Sea level rise, subsidence, cutting
10 placing 17,000 acres of dredge spoil, smothering 10 off the river's freshwater nutrients and
11 them, and then injecting salt into the other 11 sediments, canals that were dug into that
12 28,000 acres of the Central Wetlands Unit as well 12 wetland, Walker Canal, Pipeline Canal, the
13 as the Golden Triangle, causing lethality. 13 logging of cypress.
14 That's direct. Injecting saltwater into Lake 14 Q. Is there anything else?
15 Pontchartrain is direct. Killing a hundred 15 A. Probably. Nutria. Forest tent
16 square miles of the benthos is direct. 16 caterpillar, leaf roller caterpillar.
17 Q. I'm sorry. The benthos? Is that 17 Q. I'm sorry. Are those two different
18 what you said? 18 species?
19 A. The bottom of the lake's biotic 19 A. Correct.
20 community. Anoxic water, hard to live in for 20 Q. The forested caterpillar?
21 anything than an anaerobic microbe. 21 A. Forest tent caterpillar.
22 Q. I understand you to say that your 22 Q. Forest tent. And what was the other
23 definition of direct impacts from the MRGO are 23 one?
24 cutting of the channel itself, right? 24 A. Leaf roller. One impacts tupelo,
25 A. (Nods head affirmatively.) 25 one impacts cypress.
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1 Q. That's one impact. 1 Q. Which one does the forest tent
2 A. Correct. 2 caterpillar impact?
3 Q. The creation of the spoil areas; is 3 A. Water tupelo.
4 that right? 4 Q. And the leaf roller caterpillar
5 A. Correct. 5 impacts cypress?
6 Q. Saltwater intrusion into the Central 6 A. Baldcypress.
7 Wetlands Unit, what you call the Golden Triangle, 7 Q. The forest tent caterpillar, how
8 and into Lake Pontchartrain, is that correct? 8 does it impact the tupelo?
9 A. Correct. 9 A. Completely defoliates it in the
10 Q. And the impact on the organisms that 10 spring.
11 live at the bottom of Lake Pontchartrain, you 11 Q. And does that defoliation cause the
12 consider that a direct impact? 12 tree to die?
13 A. As well as increased turbidity 13 A. No.
14 caused by dredging, which is a direct impact, 14 Q. What happens after defoliation?
15 operations and maintenance, as well as 15 A. Leaves grow back, but you flush
16 resolublization of heavy metals. That's direct 16 out -- if a tree flushes out a set of leaves,
17 and continuous. And then it becomes more 17 that storage material came from the roots and you
18 nebulous. Again, the further away you get from 18 take all those leaves off the tree, it has to do
19 the actual MRGO, the more other negative impacts 19 it again. It's a negative impact. Stress.
20 can operate and the more they interact than 20 Q. Okay. And what does the long-term
21 you -- you know longer can say direct. 21 impact of that stress --
22 Q. Okay. 22 A. Alone, it would not ever kill the
23 A. So, for instance, the LaBranche 23 trees, but you throw saltwater on there, nutria,
24 Wetlands, which are pretty close, I would still 24 subsidence, sea level rise, saltwater intrusion,
25 call that an indirect -- it's a direct impact 25 then, they all interact.
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1 Q. Okay. And does the leaf roller 1 let you know.
2 caterpillar also defoliate cypress? 2 Q. Okay. But at this time, you cannot
3 A. The leaf roller is the only one that 3 think of any other indirect impacts?
4 defoliates cypress. 4 A. No.
5 Q. Okay. But it acts in the same way 5 Q. Okay. How long have these
6 as the forest tent caterpillar does on the tupelo 6 caterpillars lived in the Pontchartrain Basin?
7 by defoliating the tree? 7 A. I'm not sure. Decades. Many
8 A. Correct. 8 decades.
9 Q. Okay. Those caterpillars operate in 9 Q. By "many decades," do you mean more
10 the springtime, you said? 10 than three decades?
11 A. Yep. 11 A. Yes.
12 Q. And then the tree -- how long does 12 Q. More than four decades?
13 it take the trees to grow leaves again? 13 A. Yes.
14 A. They're usually defoliated from 14 Q. More than five decades?
15 around March 15th to beginning of April, and they 15 A. Now, it's starting to get nebulous.
16 flush back out in about the third week of May. 16 Q. Okay.
17 Q. And are the caterpillars gone by 17 A. So, probably five or six decades,
18 that time? 18 but, for sure, three.
19 A. They pupate into moths, which lay 19 Q. Is there somewhere that that could
20 eggs, live seven days, eggs stay on the trees for 20 be researched to determine --
21 the whole next year, over winter, hatch out the 21 A. Absolutely.
22 next March 15th and the whole thing starts again. 22 Q. Where would you look to find out
23 Q. Okay. So, they have basically the 23 when the caterpillars first were observed in the
24 only one eating season during each year? 24 Pontchartrain Basin?
25 A. Correct. 25 A. Dr. Richard Goyer's research.
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1 Q. Is there an impact on the trees by 1 Q. Who is Dr. Richard Goyer?
2 the eggs remaining on them throughout the -- 2 A. He's a retired entomologist from
3 A. No. 3 LSU.
4 Q. -- year? Okay. So, you listed -- 4 Q. Are these caterpillars something
5 are there any other indirect impacts that you can 5 that have regularly been studied in this area?
6 think of? And here, you were describing impacts 6 A. He spent his entire career studying
7 on the LaBranche Wetlands; is that right? 7 them.
8 A. Pontchartrain Basin as a whole, all 8 Q. You described as a direct impact the
9 the wetlands. There's nothing special about the 9 turbidity from dredging. Can you explain what
10 LaBranche Wetlands. They're just close to the 10 you mean by that?
11 Central Wetlands. So, that's why I used those as 11 A. For primary producers, that is,
12 an example. 12 microscopic plants, up to macroscopic plants,
13 Q. Okay. But these indirect impacts 13 they need sunlight. Increased turbidity
14 you list apply to the wetlands throughout the 14 decreases the amount of sunlight that penetrates
15 Pontchartrain Basin? 15 the water, decreases the photosynthetic capacity
16 A. Throughout coastal Louisiana. 16 of the water column. That decreases the food for
17 Q. Okay. Are there other indirect 17 secondary and primary consumers. So, it's a
18 impacts that you can think of that haven't listed 18 cascade effect.
19 yet? 19 Q. And by primary and secondary
20 A. I think I listed the main ones. 20 consumers, are you speaking about plants or
21 Q. All right. You think, or you -- is 21 animals?
22 that your -- 22 A. A primary consumer is a herbivore.
23 A. It's a pretty long list. 23 A secondary consumer eats herbivores as well as
24 Q. Okay. 24 plants sometimes. That would be an omnivore.
25 A. If I think of anything else, I'll 25 Q. So, what are the -- what types of
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1 primary consumers are impacted by the turbidity 1 A. What I did for my Ph.D. was to study
2 from dredging in the Central Wetlands Unit? 2 traditional statistical procedures to study, sort
3 A. Diatoms, dynoflagelates, submerged 3 of, new procedures, evolving procedures, and to
4 aquatic vegetation. 4 compare the two with regard to algal growth.
5 Q. Does that turbidity impact growth of 5 Q. What growth?
6 fresh marsh? 6 A. Algal, A-L-G-A-L.
7 A. Fresh marsh would love it. 7 Q. And what is that?
8 Q. What do you mean, they would love 8 A. Algae.
9 it? 9 Q. Is algae a type of marsh plant?
10 A. There's nutrients in turbid water. 10 A. They're -- diatoms is the primary
11 For instance, that's one of the great things that 11 one is the one I studied. Dynoflagelates are
12 the Mississippi River used to do, bring turbid 12 also considered algae. As well as there are
13 water to the wetlands, full of nutrients and 13 macro algae. Like, brown algae, red algae, green
14 sediments, which then settle out and raise the 14 algae.
15 elevation. 15 Q. And are those a type of marsh plant?
16 Q. Okay. So, that actually helps the 16 A. No.
17 freshwater marsh grow? 17 Q. Where do these plants -- are these
18 A. Yes. 18 considered plants?
19 Q. Does it also help the other kinds of 19 A. They're photosynthetic. So, that's
20 marsh grow? 20 complicated. Some people would consider -- to
21 A. Yes. 21 me, photosynthetic organisms are generally
22 Q. And what about the impact on swamps? 22 plants. Some people would argue that the algae
23 A. Yes. Of course, too much of a good 23 do not belong in the plant group, that plants are
24 thing will smother the marsh and will smother the 24 vascular.
25 swamp. 25 Q. Okay. So, where do these algae or
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1 Q. And what types of secondary 1 plants -- what type of environment do they grow
2 consumers are impacted by turbidity from dredging 2 in?
3 in the Central Wetlands Unit? 3 A. The water.
4 MR. ANDRY: 4 Q. Okay. Do they appear in the Central
5 Object to the form of the 5 Wetlands Unit?
6 question. 6 A. Any water column's likely to have
7 Go ahead. 7 algae in it, unless it's been filtered.
8 A. Invertebrates, like copapods, 8 Q. So, what geographic -- did you study
9 shrimp. Vertebrates, like fish. 9 a particular geographic area for your Ph.D.?
10 EXAMINATION BY MS. MILLER: 10 A. First half was the California coast,
11 Q. And did you understand my question? 11 a lagoon called Mugu Lagoon, M-U-G-U. Mugu
12 A. Yes. 12 Lagoon. It's where the Pacific Missile Test
13 Q. Can you describe for me what your 13 Center is. And then an island called Grand Terre
14 background is -- well, can you describe, I guess, 14 in Louisiana, was the second half of my Ph.D.
15 your area of expertise? 15 Q. And where -- when did you complete
16 A. In terms of wetlands, swamp ecology, 16 your research for your Ph.D.?
17 restoration ecology, coastal processes, coastal 17 A. I got my degree in 1986.
18 functioning. I also study multivariate 18 Q. Okay. And what did you do after
19 analytical routines and attempt to improve on 19 getting your degree in 1986?
20 them, like reconstructibility analysis, case 20 A. I was a professor in the Department
21 systems analysis. Just got a paper in 21 of Experimental Statistics at LSU for a little
22 "International Journal of General Systems" three 22 over four years, and then I got my senses back
23 days ago. 23 and got back into wetlands ecology, by moving to
24 Q. Could you describe a little more 24 Southeastern.
25 about that field for me? 25 Q. And when did you do that?
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1 A. 1990. 1 A. Correct.
2 Q. So, have you been at Southeastern 2 Q. So, that's just natural rainwater
3 since 1990? 3 that flows into the area?
4 A. Correct. 4 A. Correct. Of course, some of it
5 Q. Continuously? 5 could be pumped in. We do have pumps in various
6 A. Correct. 6 places of Louisiana where we collect the water
7 Q. Has your position there changed from 7 and get rid of it, and you get rid of it into a
8 1990 till today? 8 wetland or a water body.
9 A. In terms of the courses I teach? In 9 Q. With respect to what you described
10 terms of my research? I mean, everything 10 as the -- what's called relic swamp, you said
11 evolves. 11 pockets are potentially sustainable. Does that
12 Q. How has your research evolved since 12 mean that some of it is already beyond the
13 1990? 13 ability to restore?
14 A. Well, we've begun -- my lab has 14 A. No. We could bring the whole thing
15 begun studying assimilation wetlands, 15 back with a diversion -- with several diversions
16 collaborating with Dr. John Day. 16 of the Mississippi River and the continued
17 Q. I don't -- I want you to continue, 17 development of assimilation wetlands --
18 but what do you mean by "assimilation wetlands"? 18 Q. So --
19 A. That's where you use treated sewage 19 A. -- and we will.
20 effluent to restore wetlands and treat the sewage 20 Q. -- it's just a matter of how much
21 effluent at the same time. It's one of 21 restoration efforts -- or how many -- I guess,
22 Louisiana's only hopes for coastal restoration. 22 can you describe what it would -- how you might
23 Q. And that -- did you say that's what 23 go about bringing the whole wetlands back?
24 you're focused on now? 24 A. Yes. For a degraded marsh that used
25 A. It's one of the primary focuses now. 25 to be a swamp, you have to have a reliable source
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1 Carbon sequestration is also a relatively new 1 of freshwater and nutrients to push out the
2 focus. Been studying the Maurepas Swamp since 2 saltwater and to help improve its productivity.
3 1990, though, continuously. 3 Then, you would plant cypress artificially.
4 Q. And what have you been studying 4 Those would eventually yield seeds and you get
5 about the Maurepas Swamp? 5 natural regeneration providing that the right
6 A. Ecosystem function, methods of 6 pulsing paradigm was applied. That is a drawdown
7 restoration. 7 during the spring so -- as Dr. Day mentioned
8 Q. Can you describe the Maurepas Swamp 8 yesterday, they need -- cypress require and
9 for me? 9 tupelo require mesic conditions for their seeds
10 A. Most of it is a degrading swamp. 10 to regenerate.
11 We -- some of it is already degraded, like, the 11 Q. So, you would essentially need to
12 Manchac Swamp has converted to marsh and open 12 take whatever steps are necessary through human
13 water already. Most of the rest of the swamp we 13 manipulation of the environment to restore the
14 call relic swamp, which means it's on a 14 conditions that were there historically; is that
15 trajectory to degrade. And pockets are 15 right?
16 potentially sustainable, and those pockets are 16 A. I would say more by restoring
17 pockets that receive nonpoint source runoff from 17 natural conditions. That is, restoring river
18 neighborhoods. So, they're fresher than the 18 input, riverine input, or using, alternatively,
19 rest. 19 assimilation wetlands.
20 Q. And you said they receive runoff 20 Q. And at this point, either -- either
21 from neighborhoods? 21 of those avenues would require some sort of human
22 A. Nonpoint source runoff from 22 action to make it happen; is that right?
23 neighborhoods. 23 A. As simple as dynamite, but, yes.
24 Q. By "nonpoint source," do you mean 24 Q. By that, do you mean dynamiting the
25 not through a pumping station? 25 Mississippi River levees?
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1 A. Yes. 1 decrease saltwater intrusion.
2 Q. Is that one of the proposals being 2 Q. Isn't the Bird Foot Delta area
3 considered to restore the Maurepas Swamp? 3 further south from Lake Borne?
4 A. Dr. Day and I are preparing a paper 4 A. Yes. That's fine, though. As long
5 right now to suggest that the levees should be 5 as you got a freshwater tongue on the coast,
6 greatly degraded and, in very large areas, where 6 you're going to prohibit saltwater intrusion.
7 maybe once only ten years or so the river stage 7 Q. Okay.
8 comes up high enough to where it would flow over 8 A. It spreads out.
9 the levees -- the levees would still be there and 9 Q. And what is the process through
10 they'd be armored, but that anyplace we could use 10 which you might be able to create these
11 a degraded levee, we should do that. It's really 11 diversions? Is this one of --
12 the only hope for coastal Louisiana, massive 12 A. We're already doing it. So -- we're
13 diversions. 13 not exploring this. We've made several
14 Q. Which places are you recommending 14 diversions into Louisiana.
15 that those diversions be created? 15 Q. Oh, okay. Where have those been?
16 A. Where people don't live. The 16 A. The first one was Caernarvon, and
17 Maurepas Swamp is a great place to put a couple 17 then we've got several other, White -- White's --
18 of them. Near the Bird Foot Delta is a great 18 Davis Pond, Point a la Hache. There are several
19 place to put as many as we can, into the Breton 19 others.
20 Sound, Barataria, down Bayou Lafourche. We need 20 Q. And do you see an immediate impact
21 to increase the discharge down the Atchafalaya. 21 from creating these diversions?
22 Basically, everywhere you can put water that 22 A. So far, the diversions have tended
23 doesn't flood people, it needs to go there. 23 to be too small and, so, they tend to short-
24 Q. And would creating diversions from 24 circuit. That is, the water gets in water before
25 the Mississippi River into the Lake Maurepas 25 it does much overland flow, what we call sheet
Page 43 Page 45
1 area, would that have an impact on the Breton 1 flow and, so, we've learned from that. We're
2 Sound area? 2 learning how to manifold the water better now to
3 A. It would freshen it. 3 ensure sheet flow so, hopefully, the next
4 Q. And the Lake Borne area? 4 diversion that goes in will be into the Maurepas
5 A. The water has to leave somewhere, 5 Swamp, and we're ensuring that that water is
6 and there's only two conduits for it to go out 6 going spread out the way the diversion is
7 of, North Pass and South Pass, and then it goes 7 designed. We're going to overwhelm the short-
8 directly into Lake Pontchartrain, and that dumps 8 circuits.
9 directly into Lake Borne and that dumps directly 9 Q. Is this a proposal that you're
10 into the Gulf of Mexico. So, yeah, you turn the 10 making through the CWPPRA process?
11 diversion on and it gets fresher. 11 A. Yes. I nominated the project
12 Q. So, that is your proposal, to create 12 through the EPA in 1999.
13 diversions -- or would help not only the Maurepas 13 Q. And what has happened after your
14 Swamp, but also wetlands farther southeast of 14 nomination?
15 that? 15 A. Very frustrating wait.
16 A. Yes, and we, of course, propose 16 Q. Can you describe that? Can you
17 diversions also southeast of that. Wherever you 17 describe how CWPPRA works in terms of you
18 can get the Mississippi River. You can't just 18 obviously have this proposal. What does it take
19 take it places. So, you have to be proximal to 19 through CWPPRA to get it implemented?
20 it. 20 A. Today is the first day the projects
21 Q. But the -- would the diversions that 21 get nominated for this year. It's called PPL 19.
22 you recommend farther south down the river in the 22 It's the 19th year of project nominations and
23 Bird Foot Delta, would that have an impact on the 23 project funding. And then, so, maybe 70 projects
24 Lake Borne area? 24 or maybe only 20 projects will be nominated
25 A. Yeah. It would prohibit or at least 25 today, maybe only ten. Then, those will be put
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1 through the wetland value assessment by the 1 Q. So, do you recall what those
2 agencies and a few scientists, me being one of 2 projects were in '91 that you first requested?
3 them, and the list goes to ten at that point. So 3 A. One of the big ones was dedicated
4 that I think the first list is usually 20 to 24, 4 dredging into LaBranche Wetlands, a 300-acre
5 the second list is ten, and then, finally, by the 5 project. That's the only one I really remember
6 fall of 2009, we will have four projects, on 6 from the first year.
7 average, that get funded. 7 Q. And by saying -- do you remember
8 Q. Each year, is it typically four 8 what projects were actually funded?
9 projects that get funded? 9 A. The first year?
10 A. Yes. Typically, but it could be a 10 Q. Right.
11 couple of smaller projects bring it up to six, 11 A. I don't remember the other ones.
12 couple of huge, bigger projects bring it down to 12 Q. Is it -- has it happened in more
13 two. There's no rule that there has to be four. 13 years than the first year that projects -- I'm
14 Q. Is there a set amount of money each 14 sorry. You said it's a committee; is that right?
15 year? 15 What do you call -- is it a Technical Committee?
16 A. Yes, 40 to $50 million. 16 Is that what you're called?
17 Q. Who determines how much money is 17 A. Yes. We are the Technical Advisory
18 available to fund these projects? 18 Committee, but there's also a committee of
19 A. Coastal Louisiana -- I mean, the 19 agencies.
20 State of Louisiana has to provide match for each 20 Q. And what does the committee of
21 project. So, they more or less have the trump 21 agencies do?
22 card. If they don't like a project and they 22 A. Choose the projects.
23 don't provide a match, then, the project cannot 23 Q. How does that compare with what the
24 go forward. 24 Technical Advisory Committee does?
25 Q. Is the remainder of the money 25 A. We make suggestions. They either
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1 provided by the federal government? 1 take them or they don't. We have no power.
2 A. Correct. 2 Q. I see. So, the Agency Committee has
3 Q. So, is that -- how long have you 3 the power, as you call it?
4 been involved with CWPPRA? 4 A. Correct.
5 A. I was named the academic advisor for 5 Q. And who is on the Agency Committee?
6 Lake Pontchartrain Basin the very first year. 6 A. Corps of Engineers, Environmental
7 Q. And what year was that? 7 Protection Agency, Louisiana Department of
8 A. 1991. 8 Natural Resources, NRCS, who I always forget,
9 Q. And has the process for nominating 9 used to be NCS, NOAA. Seems like there ought to
10 and funding projects changed over the 19 years? 10 be one more. Well, NOAA is NMFS, so, National
11 A. It has become a lot less political. 11 Marine Fisheries Service, and U.S. Fish &
12 Q. What do you mean by that? 12 Wildlife.
13 A. Well, the first year, the scientists 13 Q. Okay. So, the National Marine
14 honed down something like 70 projects to 14, and 14 Fisheries Service is part of NOAA?
15 then we handed those over to the State and none 15 A. Correct.
16 of them got chosen. 16 Q. Right? Okay. So, you, in your
17 Q. Did -- if no projects are chosen, 17 opinion, if -- then, if -- could you tell me
18 what happens -- 18 again what NRCS is?
19 A. No. They chose other projects. 19 A. It used to be the Soil Conservation
20 They just totally ignored our input. They hired 20 Service. Now, it's the National Conservation --
21 us to get this great list for them and then they 21 what's the R -- oh, Resources Service.
22 ignored the projects. 22 Q. And is that a state or federal
23 Q. Where did they get the projects that 23 agency?
24 they did fund? 24 A. Federal.
25 A. Politics. 25 Q. So, the Louisiana Department of
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1 Natural Resources is the only state agency; is 1 particular piece of legislation?
2 that right? 2 A. No, not to my knowledge. Primary
3 A. Correct. 3 author was Dr. Woody Gagliano.
4 Q. And you -- in your opinion, they 4 Q. So, Coast 2050 is a written
5 have the most power? 5 publication?
6 A. Correct. 6 A. Yes.
7 Q. So, they have the most power in the 7 Q. So, I've heard all of these names --
8 decision-making process because -- 8 names of programs used a lot, and I think Dr. Day
9 A. Because they have the match. 9 described yesterday that it gets confusing trying
10 Q. -- they control the matching 10 to keep track of how they've all evolved. So,
11 funding? 11 Coast 2050 in itself is not a project or a
12 A. Correct. 12 mechanism for funding individual projects; is
13 Q. So, when you describe it as being 13 that right?
14 politics that ultimately selects the projects 14 A. No. It's an integrator. We
15 that get implemented, you mean some sort of 15 realized that we are basically applying a
16 politics within the state of Louisiana? 16 Band-Aid approach to restoring coastal Louisiana,
17 A. I have no idea, but I -- that was 17 and Coast 2050 was the first attempt to integrate
18 only the very early years. It's a very clean 18 projects over the entire coast so that one
19 process now. 19 project interacted with another and, in advance,
20 Q. Okay. 20 this was sought after.
21 A. It got better every single year. 21 Q. So, with respect to the nomination
22 Q. Can you describe how it changed over 22 and selection of projects through CWPPRA, can you
23 time? 23 describe what you refer to as it becoming a more
24 A. It became more objective, more out 24 objective process over the years?
25 in the open, and at the early beginning, these 25 A. Sure. For each project that makes
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1 projects were foisted on parishes. Basically, 1 the first cut, the agencies and a few scientists
2 this is a good project for your parish here, 2 go out to the actual study site and fill out a
3 we're going to go dig it, or do it, and that was 3 wetland value assessment and then we have to
4 not very popular. The public wanted input. And 4 project into the future 20 years or even 50 years
5 that's the purpose of Coast 2050. It's a public 5 for a swamp what will happen with the project and
6 relations document, primarily. 6 what will happen without the project, and if you
7 Q. So, in, say, 1991 and the early 7 integrate the two curves, you get the benefits of
8 years of the CWPPRA program, were there public 8 the project, and then the project gets costed out
9 meetings to -- in the process of selecting 9 and then you get cost per benefit.
10 proposals? 10 Q. So, are the projects ultimately
11 A. Town meetings, that sort of thing? 11 selected based on the cost/benefit ratio?
12 Q. What kind of public involvement was 12 A. Yes, generally. Sometimes they're
13 available with CWPPRA? 13 too expensive. So, even though they have a high
14 A. I wasn't involved in that. 14 cost benefit, the cost alone is too high to fund
15 Q. Okay. So, you -- the Technical 15 them.
16 Advisory Committee didn't have interaction with 16 Q. So, do you -- the Technical Advisory
17 receiving public input; is that right? 17 Committee or the Agency Committee may make a
18 A. Not until Coast 2050. 18 judgment that it's better to fund three projects
19 Q. Okay. And when did Coast 2050 19 with a lower cost/benefit ratio or -- three
20 happen? 20 projects that may be less expensive that may not
21 A. 1998. 21 have as high of a benefit ultimately?
22 Q. And what brought that about? 22 MR. ANDRY:
23 A. The realization that we need to 23 Object to the form. I've
24 bring the people in. 24 kind of lost myself about CWPPRA
25 Q. And is Coast 2050 the product of a 25 and -- what time frame are we
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1 talking about? 1 swamp there.
2 THE WITNESS: 2 Q. What are the projects -- well, so,
3 Let me just finish it real 3 is that a project that you consider to be related
4 quick. We're almost done. 4 to the MRGO?
5 MR. ANDRY: 5 A. Everything around the MRGO is
6 Go ahead. 6 related to the MRGO.
7 A. The projects are ranked based on 7 Q. So, what other projects have been
8 cost benefit and then each agency has a vote. 8 proposed to provide mitigation for impacts from
9 They do not have to vote on the ranking because 9 the MRGO?
10 they all have different mandates. So, generally, 10 A. Violet diversion is probably the big
11 the list of ranked projects is not the list that 11 one. Lots of rocks, lots of shoreline protection
12 gets funded. The projects that get the most 12 attempts. Primarily shoreline protection
13 votes get funded. 13 attempts.
14 EXAMINATION BY MS. MILLER: 14 Q. You mean that separately from the
15 Q. Okay. So, the rankings are done by 15 Violet diversion?
16 the cost/benefit ratio; is that right? 16 A. Yes.
17 A. The original rankings, to get a 17 Q. Are there any others that you can
18 list. 18 think of?
19 Q. The technical -- 19 A. Those are the primary ones.
20 A. To get a list. 20 Q. And those are projects that have
21 Q. So, you get a list based on 21 actually been implemented; is that right?
22 cost/benefit, and then the Agency Committee votes 22 A. Well, the Violet diversion is an on-
23 on that list? 23 and-off project, but as a CWPPRA project, it has
24 A. Correct. 24 not yet been implemented.
25 Q. And projects are generally funded by 25 Q. How has it been implemented?
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1 the results of that vote? 1 A. It was operated by St. Bernard
2 A. Yes. 2 Parish for a number of years and Louisiana
3 Q. Or selected and then funded. Okay. 3 Department of Natural Resources has operated it
4 So, you've been involved with CWPPRA continuously 4 for a number of years. It will become a funded
5 since it began in 1991; is that right? 5 project in the future at some point, and it'll be
6 A. I would say more or less 6 much, much bigger than it is currently operated
7 intermittently. I've been reassigned as the 7 at.
8 academic advisor for the Pontchartrain Basin for 8 Q. Other than CWPPRA, are there avenues
9 the last two years, maybe three. So, there was a 9 to get funding for these types of mitigation
10 space in between where I still was involved in 10 projects?
11 any project that had to do with the swamp or the 11 A. Well, the LCA was finally approved
12 Pontchartrain Basin, but I wasn't the academic 12 couple years ago and CIAP monies. Sometimes
13 advisor for a number of years. 13 mitigation money is used to restore wetlands.
14 Q. And have there been projects through 14 So, whenever a wetland is taken out, there was a
15 CWPPRA related to the swamp in the Central 15 requirement under the Clean Water Act to
16 Wetlands Unit? 16 mitigate.
17 A. Well, there have been projects to 17 Q. Does that mitigation have to apply
18 decrease MRGO's impact and, so, yes. 18 to the particular project that caused the loss?
19 Q. Okay. And what are those -- 19 A. The loss is -- yeah, that project
20 A. In fact, last year, there was one in 20 pays to mitigate somewhere else.
21 the Central Wetlands Unit that Travis Creel of 21 Q. So, the Clean Water Act, you have a
22 the Corps and myself nominated, and that was to 22 particular project that causes a loss or a harm
23 do dedicated dredging into what we call the 23 to wetlands, and you then are able to fund
24 Triangle or A1 of the Central Wetlands Unit to 24 restoration of wetlands to compensate for that;
25 bring the wetlands back up so we could regenerate 25 is that right?
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1 A. Correct. 1 LCA plan funded at this point?
2 Q. And does that -- does the 2 A. It's authorized, but not funded.
3 restoration have to be in the same area that was 3 Q. What does that mean as far as the
4 harmed? 4 ability to implement projects pursuant to it?
5 A. Ideally, on-site in kind is the -- 5 A. The money's not there yet.
6 considered the best type of mitigation, but, very 6 Q. So, until these projects are funded,
7 often, that's not possible. So, they go in kind 7 they can't go forward; is that right?
8 off-site, and if that's not possible, you go 8 A. Yes.
9 off-site, out of kind. 9 Q. And does LCA operate in a similar
10 Q. Okay. And the LCA, you said it was 10 way to CWPPRA in that it will approve individual
11 finally approved a few years ago. Was that a 11 projects each year?
12 long process of trying to get approval for that? 12 A. I'm not sure.
13 A. Many years. 13 Q. So, it may be that everything
14 Q. Were you involved in that? 14 initially proposed under LCA gets funded at the
15 A. I was involved as one of the 15 same time?
16 scientists that formulated the documentation of 16 A. That would be hard to believe that
17 the LCA. Robert Twilley of LSU was in charge of 17 there would be that much money available.
18 it. 18 Q. Okay. Does the proposal for --
19 Q. So, this was a plan -- the LCA 19 well, is there a specific proposal already made
20 refers to a plan to do a large-scale mitigation; 20 for what will be implemented pursuant to LCA?
21 is that right? 21 A. It's a living document. It's now
22 A. Fourteen billion dollars originally. 22 morphed again into this CPRA, Coastal Protection
23 Q. And is this another state and 23 and Restoration Authority, maybe.
24 federal combined effort? 24 Q. Oh, LACPR, is that what that's
25 A. I believe so. 25 referring to?
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1 Q. So, the Corps of Engineers is 1 A. Yeah.
2 participating in that effort? 2 Q. Okay. And do you know -- can you
3 A. Yes. 3 describe what that is?
4 MR. ANDRY: 4 A. No. Well, it's an attempt for the
5 Can I take a break for just 5 hurricane protection system to include wetlands
6 a second? 6 restoration, to marry the two.
7 MS. MILLER: 7 Q. So, LCA alone, did that only address
8 Sure. That's fine. 8 wetlands restoration?
9 (Whereupon, a discussion was 9 A. That was the primary focus.
10 held off the record.) 10 Q. And it did not focus on hurricane
11 THE VIDEOGRAPHER: 11 protection; is that right?
12 On the record. 12 A. Certainly, knowledge of wetlands and
13 EXAMINATION BY MS. MILLER: 13 hurricane protection and how they link up is --
14 Q. I just want to follow up on a couple 14 was considered.
15 things that we were talking about before the 15 Q. But the projects are not
16 break, and you had been discussing CWPPRA and how 16 specifically directed to hurricane protection, is
17 projects are selected and funded through that and 17 it?
18 we were moving on to the LCA plan, which, I 18 A. Projects are to restore coastal
19 think, you described as being another interagency 19 Louisiana.
20 collaborative effort; is that right? 20 Q. Okay. And the LACPR, what does it
21 A. Yes. 21 do to incorporate hurricane protection that the
22 Q. And do you recall when that 22 LCA did not do?
23 collaboration began? 23 A. For example, cypress trees in front
24 A. Probably late '90s. 24 of levees.
25 Q. And then another -- so, is -- is the 25 Q. It's proposing that they be planted
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1 there; is that right? 1 Parish called for the closure of MRGO before
2 A. Yes. 2 that. Basically, when it got opened, they were
3 Q. So, the LCA -- do both -- is there a 3 calling for the closure.
4 particular plan or set of projects currently 4 Q. But in terms of specific actions
5 proposed under the LACPR? 5 taken to put that into place, do you know when
6 A. I haven't read that. 6 those began occurring?
7 Q. But there's a -- 7 A. The actions? They didn't ever
8 A. But I'm sure there are projects. 8 occur.
9 Q. So, there's a document that's been 9 Q. Well, so, what about -- how did they
10 produced that describes what is proposed? 10 become -- the recommendation to close the MRGO,
11 A. I don't know how it relates to this 11 what does it mean that it was part of the Coast
12 state master plan, but that -- again, it's a 12 2050 plan?
13 living document, changing all the time. 13 A. It's in the plan.
14 Q. Okay. But the -- both of these, as 14 Q. And those were things that, were
15 well as the CWPPRA, were -- are all interagency 15 funding to be available, might be implemented?
16 collaborative efforts; is that right? 16 A. Everybody knew that MRGO needed to
17 A. I believe so. 17 be closed a very long time ago, and the funds
18 Q. And the Corps of Engineers is 18 have never been provided.
19 involved in each of those? 19 Q. And is it your opinion that it is --
20 A. I'm not sure. 20 was just a lack of funding that prevented the
21 Q. Well, you know they're involved in 21 closure?
22 CWPPRA, right? 22 A. Absolutely not.
23 A. Yes. 23 Q. What else?
24 Q. And do you know whether they're 24 A. It was pure negligence,
25 involved in the LCA? 25 irresponsibility on the Corps' part.
Page 63 Page 65
1 A. Yes. 1 Q. What do you mean by that?
2 Q. They are involved? 2 A. I mean that they were -- as we have
3 A. Yes. 3 very well documented in our expert report, they
4 Q. And you don't know about LACPR; is 4 knew the detrimental impacts. They knew they
5 that right? 5 were going to cause saltwater intrusion. They
6 A. No. 6 knew they were pointing a conduit at the heart of
7 Q. Is LACPR something that came into 7 Louisiana, at the heart of New Orleans. They
8 being after Hurricane Katrina? 8 knew at the apex they were putting a funnel in
9 A. I believe so. 9 there. They knew that the canal was going to
10 Q. Okay. So, does the LCA plan address 10 widen and kill more wetlands. They knew that
11 projects -- I'm sorry -- does the LCA plan 11 they were injecting lethal salt into the
12 include projects intended to address impacts from 12 wetlands, and they knew that that injection was
13 the MRGO? 13 going to be bigger every year.
14 A. I'm not sure, but I think closure of 14 Q. And are these some of the
15 the MRGO certainly is recommended. 15 problems that projects through CWPPRA were
16 Q. Do you know when that was 16 intended to address?
17 recommended? 17 MR. ANDRY:
18 A. It was recommended in Coast 2050 and 18 Object to the form of the
19 endorsed by the Corps. 19 question of.
20 Q. So, was that a project that was ever 20 A. CWPPRA doesn't have enough money.
21 proposed, I guess -- as being part of Coast 2050, 21 The closure of MRGO is going to cost $800
22 does that mean it was proposed as part of a 22 million. That's, like, the total of CWPPRA.
23 CWPPRA project? 23 EXAMINATION BY MS. MILLER:
24 A. Way back in 1973, Woody Gagliano 24 Q. So, that would have been too large
25 called for the closure of MRGO, St. Bernard 25 of a project to be included in CWPPRA, but a
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1 number of the other things you referenced, you 1 A. Already gone or potentially
2 said that some of the CWPPRA projects were 2 sustainable.
3 intended to address some of the impacts of the 3 Q. Okay. And what has caused the
4 MRGO; is that right? 4 degradation of that swamp, in your opinion?
5 A. Band-Aid projects. 5 A. Many things. The levee of the
6 Q. And by that, you just -- by 6 Mississippi River being the primary, saltwater
7 "Band-Aid," you mean smaller projects that 7 intrusion, sea level rise, subsidence, nutria.
8 address maybe a limited area; is that right? 8 Q. Can you describe -- well, have you
9 A. Putting a Band-Aid on a cut when you 9 studied what the swamps in the Lake Pontchartrain
10 have cancer. 10 region have looked like historically?
11 Q. Okay. Can you describe that maybe 11 A. Yes.
12 as it applies to the MRGO? 12 Q. And can you describe how the swamps
13 A. Yes. The MRGO is very much like a 13 have changed over time?
14 cancer, a lethal cancer. 14 A. They have become less healthy.
15 Q. So, is it your opinion that the 15 Q. And what do you mean when you
16 projects implemented through CWPPRA, like the 16 describe a swamp as healthy?
17 rock protection and the other -- the Violet 17 A. Well, when you shut off the blood
18 diversion and other things you mentioned to 18 flow of the Mississippi River, shut off the
19 address impacts from the MRGO -- I'll start over. 19 freshwater and the nutrients and the sediments
20 You mentioned that there have been 20 and allow saltwater to intrude.
21 some projects implemented through CWPPRA to 21 Q. So, in terms of -- so, when you
22 address the MRGO; is that right? 22 describe a swamp as healthy, you mean that it has
23 A. Yes. 23 all of the freshwater input and other nutrients
24 Q. And by comparing it to a Band-Aid 24 that it needs to continue to survive?
25 and cancer, is it your opinion that those 25 A. Yeah. A good example is the Central
Page 67 Page 69
1 projects have not been effective? 1 Wetlands Unit before MRGO. Those tall grasses,
2 A. Yes. 2 giant cutgrass, Zizaniopsis miliacea, is highly
3 Q. Did they have any positive impact, 3 indicative of sheet flow. That's moving water.
4 in your opinion? 4 That's a grass that you look -- you see that
5 A. I don't know. 5 grass near a swamp, you're looking at a very
6 Q. Have you evaluated that? 6 healthy wetland.
7 A. No. 7 Q. So, when you describe a healthy
8 Q. So, you don't know the success of 8 swamp, you mean a healthy wetland as a whole. Is
9 those projects? 9 there a distinction between what you say -- what
10 A. Well, we know when we put rocks in 10 you mean when you say "healthy swamp" versus
11 coastal Louisiana on top of mud, it's just a 11 "healthy wetland"?
12 matter of time that they sink, for instance. So, 12 A. A wetland has marshes and swamps,
13 it -- that's another Band-Aid. 13 could be a bog, mire, mud cake. Wetland is a
14 Q. So, there may be some temporary 14 very broad term.
15 benefit from the project? 15 Q. Are the same -- so, when you
16 A. Maybe. 16 describe something as healthy, you're referring
17 Q. Okay. I'd like to go back to what 17 to the conditions of the environment; is that
18 you began talking about, some of the CWPPRA 18 right?
19 projects through your work with the Lake Maurepas 19 A. Ecosystem function.
20 Swamp, and you described that most of that swamp 20 Q. So, when you say "healthy wetlands"
21 is degrading; is that right? 21 or "healthy swamp," you mean the ecosystem is
22 A. Over 80 percent. 22 functioning at its peak, or is there a better way
23 Q. Over 80 percent. So, is the 23 to say that?
24 other -- how would you describe the other 20 24 A. It's functioning well.
25 percent? 25 Q. Okay. Functioning well. And all
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1 the things you've listed as impacting the swamps, 1 swamp looked like in the 1950s?
2 such as the river levees, saltwater intrusion, 2 A. Yes.
3 nutria and the other factors, those mean -- those 3 Q. How would you describe it?
4 result in a less well functioning ecosystem? 4 A. Well, the river had been cut off
5 A. Yes, over long periods of time. 5 then, so, not as healthy, but the swamps were
6 Q. So, at what point in time would you 6 largely intact in the '50s.
7 say the Maurepas Swamp was healthy? 7 Q. So, you describe it today as being
8 A. Again, parts of it are still 8 80 percent degrading and 20 percent already gone.
9 healthy, relatively healthy, because they receive 9 A. The Maurepas Swamp.
10 nonpoint source runoff and saltwater intrusion is 10 Q. Right. What statistics would you
11 largely prohibited. 11 apply to the 1950s for the Maurepas Swamp?
12 Q. Is there a time when 100 percent of 12 A. Largely intact.
13 the swamp was healthy? 13 Q. By "largely," can you assign a
14 A. Before they leveed in 1927, when it 14 percentage?
15 still received crevasse splays on a regular 15 A. No.
16 basis, the swamps of the Pontchartrain Basin were 16 Q. Would any of the swamp have been
17 healthy. 17 degrading at that point?
18 Q. You would say all of them? 18 A. Probably. Yeah, the degradational
19 A. Before the levees? 19 process had probably began.
20 Q. Right. 20 Q. Can you assign a percentage to the
21 A. Probably. 21 amount of swamp --
22 Q. Why do you say "probably"? 22 A. No.
23 A. Well, I don't -- I wasn't there. 23 Q. -- that was degrading in the 1950s?
24 Q. What have you studied that makes 24 A. No.
25 you -- what have you studied that leads you to 25 Q. How is it that you determine a
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1 conclude that they were probably healthy prior to 1 percentage that you apply today as to how much of
2 leveeing of the river? 2 the swamp is degrading?
3 A. I know what makes swamps function. 3 MR. ANDRY:
4 Q. So, some, though, of the factors you 4 Object to form of the
5 listed as impacting the functioning of the 5 question. I don't know what swamp
6 ecosystem were occurring prior to leveeing the 6 we're talking about or what time
7 river; is that right? 7 frame or what percentages. If we
8 A. On the delta cycle as a whole, of 8 can get a little clarity -- go
9 course. 9 ahead, if you can answer the
10 Q. So, the subsidence was already 10 question. I think the record is
11 occurring? 11 going to be very off as to what
12 A. I'm talking about thousands of years 12 we're talking about.
13 here. Decades and centuries. These processes 13 MS. MILLER:
14 operate at different time scales. 14 Are you finished?
15 Q. Which processes? 15 MR. ANDRY:
16 A. Delta building, subsidence, 16 Yeah, I'm finished. It's
17 processes like that, geologic processes. 17 confusing.
18 Q. So, sea level rise would be part of 18 EXAMINATION BY MS. MILLER:
19 that? 19 Q. Dr. Shaffer, do you know what time
20 A. Yes. 20 period I'm asking you about?
21 Q. Okay. So, how quickly did the 21 A. Yes.
22 Maurepas Swamp, for example, begin to degrade 22 Q. And what time period is that?
23 after leveeing of the river? 23 A. You're asking me, I think -- well, I
24 A. Decades. 24 thought you were asking me how we got the
25 Q. So, what -- do you know what that 25 proportions of what was -- what the trajectories
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1 were like. 1 Q. So, does that mean you're basing it
2 Q. Right. And you had listed an 80 2 on the canopy that is observed in the
3 percent and 20 percent number for essentially the 3 photography?
4 present day condition of the Lake Maurepas Swamp; 4 A. Yes.
5 is that right? 5 Q. Is there anything -- any other
6 A. Yes. 6 signature of the healthy swamp that you
7 Q. Just wanted to clarify for Mr. Andry 7 associate -- I'm sorry.
8 what we were talking about. 8 Is there any other signature in an
9 So, how was it that you determined 9 aerial photograph that you associate with a
10 those percentages? 10 healthy swamp?
11 A. We have 48 625-meter square plots. 11 A. The marsh that's interspersed with
12 We measure their health, we extrapolate and 12 the swamp.
13 that's how we get the numbers. 13 Q. What do you mean by that?
14 Q. By measuring, do you mean you're in 14 A. Well, that's why we put these images
15 the swamp taking measurements? 15 in the supplemental report, to demonstrate that
16 A. Yes. 16 the marsh interspersed with a swamp is a tall
17 Q. Do you make aerial photographs to 17 grass or reed that basically requires throughput
18 make those judgments? 18 sheet flow conditions, and that's as healthy as a
19 A. Use aerial photography to do the 19 marsh gets.
20 extrapolations. 20 Q. Okay. But based on the type of
21 Q. Can you describe that? 21 plants growing in the marsh areas within the
22 A. A healthy swamp has a certain 22 swamp, you make a judgment about the sheet flow
23 signature, a degrading swamp has a certain 23 of the area; is that right?
24 signature from the sky. So, if you know on the 24 A. Plants are indicators of what's
25 ground what's going on and then you find out what 25 going on, yes.
Page 75 Page 77
1 the signature is, then you can extrapolate. 1 Q. Okay. So, you use the plants --
2 Q. What is the signature of a healthy 2 okay. I think I understood what you're saying.
3 swamp from the sky? 3 So, the signatures you look for in
4 A. Depends on whether you are using 4 aerial photography to indicate a healthy swamp
5 aerial photography or satellite, but there are 5 are density and lushness based on the tree canopy
6 just certain signatures. 6 that's observed; is that right?
7 Q. What are the signatures that you 7 A. Yes, and also another reason why we
8 associate with a healthy swamp when you're 8 produced this report is it doesn't have to be
9 looking at -- 9 dense completely. It can be linear, sinusoidal
10 A. That's not my line of work. That's 10 dense, it can be interspersed with marsh. For
11 more of a John Barras question. 11 instance, someone could interpret that as
12 Q. Is that true also for not just 12 scattered, when it's not really scattered. It's
13 satellite imagery, but aerial photography? 13 clumped. It's patchy. Those are very different
14 A. Aerial photography is much easier 14 things.
15 because you can actually see. 15 Q. Okay. Scattered versus clumped or
16 Q. So, you -- but is that something 16 patchy. I want to make sure I understand what
17 that you do in your line of work? 17 you look for when you look for signatures of a
18 A. Aerial photography? 18 healthy swamp in aerial photography. You've
19 Q. Interpretation of aerial photography 19 listed the density and the lushness of the
20 based on the signatures. 20 canopy; is that right?
21 A. If necessary, yeah. 21 A. Yes.
22 Q. Okay. So, what do you consider to 22 Q. One factor. And you've also listed
23 be the signature of a healthy swamp in aerial 23 the marsh or the vegetation types growing
24 photography? 24 around -- in the marsh areas around the swamp as
25 A. Dense, lush. 25 another indicator; is that right?
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1 A. Yes. 1 A. If you can.
2 Q. Are there other things that you look 2 Q. How do the two relate?
3 for in aerial photography to determine the health 3 A. The ground truthing comes
4 of a swamp? 4 afterwards.
5 A. Those are the primaries. 5 Q. So, is it typically part of your
6 Q. Okay. And what are the indicators 6 approach to evaluating a swamp -- when you're
7 of a degrading swamp in aerial photography? 7 evaluating a swamp, do you typically use aerial
8 A. Many of the trees have died. 8 photography?
9 Certain species of trees disappear and certain 9 A. Not unless you have to. It's much
10 species don't. 10 better to be on the ground measuring growth, and
11 Q. What do you mean by that? 11 that's what we do generally.
12 A. Cypress is more salt tolerant than 12 Q. Okay. So, when is it that you end
13 either tupelo, ash or maple. So, if you a swamp 13 up needing to use aerial photography
14 that is composed of a monoculture of cypress, 14 interpretation?
15 that swamp has got saltwater intrusion. 15 A. When you need to extrapolate from
16 Q. Okay. So, if you see from aerial 16 what you're measuring on the ground.
17 photography a swamp that look like it contains 17 Q. So, do you mean when you're unable
18 both tupelo and cypress, you would conclude that 18 to access a particular area or something like
19 it's most likely more fresh? 19 that?
20 A. Fresh, yes. 20 A. The area is too big. You can't
21 Q. So, you can determine from aerial 21 possibly sample the growth of the Maurepas -- you
22 photography whether trees in the picture are 22 know, a couple hundred thousand acres. There's
23 tupelo or cypress? 23 no team of scientists that could cover the whole
24 A. Should be able to if it's close 24 thing. That's why we have statistics.
25 enough. 25 Q. Okay. So, the same -- all right.
Page 79 Page 81
1 Q. Does it also depend on whether the 1 Have you done -- well, when did you first become
2 leaves are on the trees? 2 familiar with the swamp in the vicinity of the
3 A. Sure. 3 MRGO?
4 Q. Are there other things that impact 4 A. Probably the day I got to Louisiana.
5 your ability to judge what type of tree is in the 5 Anybody that's introducing a new student to
6 photograph? 6 wetlands science in Louisiana is going to talk
7 A. Again, you are getting outside of my 7 about the degradation that MRGO has caused.
8 expertise. I'm not -- I'm not a land loss aerial 8 Q. So, looking at your résumé, it looks
9 person. It's something that we have to do as 9 like you -- did you move to Louisiana from
10 being a wetlands scientist. It's just part of 10 California?
11 the way that we -- it's part of the methodology 11 A. Yes.
12 that we use. 12 Q. So, you didn't -- did you grow up in
13 Q. Okay. But you -- do you mean by 13 California?
14 being outside your expertise that you -- you need 14 A. Yes.
15 to use aerial photography, but you typically rely 15 Q. So, you moved to Louisiana when you
16 on other people's interpretation of the 16 began your Ph.D. program; is that right?
17 photography? 17 A. Correct.
18 A. It depends. 18 Q. And prior to that, had you studied
19 MR. ANDRY: 19 the swamps of Louisiana?
20 Object to form of the 20 A. No.
21 question. 21 Q. Okay. So, you began your study --
22 A. We do ground truthing. So, you 22 when did you begin your Ph.D.? Around '82 or
23 generally check that you're right. 23 '83?
24 EXAMINATION BY MS. MILLER: 24 A. Yes, '82.
25 Q. After you look at photographs? 25 Q. Must have been -- I noticed you went
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1 to UC Santa Barbara. That's a pretty nice area, 1 talking about your report and supplemental
2 right? 2 report, but I just want to confirm for the record
3 A. Yes. 3 that all the documents that we're referencing are
4 Q. Must have been fun. 4 the same that we discussed yesterday with Dr.
5 When you began your Ph.D. program, 5 Day. So, what was Dr. Day's Exhibit 2 is your
6 did you visit the -- what swamps in the area did 6 July, 2008 report; is that right?
7 you visit? 7 A. If you say so.
8 A. When I began my Ph.D. program? 8 Q. I think they're in this stack right
9 Q. Well, did you -- when did you start 9 here. Is this the exhibit stack?
10 going into the swamps in the Louisiana coastal 10 A. Yes.
11 area and taking samples and evaluating them? 11 Q. Okay. And Day Number 3 is your
12 A. I worked in the Atchafalaya during 12 supplemental report that you prepared this week;
13 my Ph.D. and post-doc and also while I was a 13 is that right?
14 professor in the Stats Department, moved over to 14 A. Correct.
15 the Maurepas Swamp the day I hit Southeastern. 15 Q. Okay. And then I don't think we
16 THE VIDEOGRAPHER: 16 introduced your other report, but you prepared
17 Off the record for a second. 17 one more report with Dr. Day that was produced in
18 (Whereupon, a discussion was 18 September of 2007; is that right?
19 held off the record.) 19 A. Yes.
20 THE VIDEOGRAPHER: 20 Q. Okay. And do those three reports
21 On the record. 21 include the totality of the opinions you've
22 EXAMINATION BY MS. MILLER: 22 formed about this litigation?
23 Q. Okay. So, could you describe when 23 A. Thus far.
24 you first began studying the wetlands in the 24 Q. Okay. Do you intend to produce any
25 vicinity of the MRGO in the Central Wetlands 25 additional reports?
Page 83 Page 85
1 Unit? 1 A. If -- if further information becomes
2 A. Probably with -- with CWPPRA 2 available, it's always possible.
3 projects would be the first one, more recently 3 Q. Okay. I think I may have already
4 with Dr. Day with the assimilation wetlands, and 4 asked you that.
5 then more recently than that, this expert report. 5 A. You did.
6 Q. So, maybe in the early '90s, you 6 Q. What -- can you describe what you've
7 first began evaluating CWPPRA projects related to 7 looked at to evaluate the change in the Central
8 this area? 8 Wetlands Unit and the wetlands surrounding MRGO
9 A. Yes. 9 over time?
10 Q. And then when did you start your 10 A. Saltwater data is primary. When the
11 work with Dr. Day on the assimilation wetlands? 11 La Loutre Ridge was cut is primary.
12 A. Few years ago. 12 Q. Well, were you familiar with the
13 Q. So, the mid-2000s? 13 history of the MRGO and its construction prior to
14 A. Probably, yeah. 14 your work on this litigation?
15 Q. So, maybe 2003, '04, '05? 15 A. Yes. Any Louisiana wetlands
16 A. More like '05. 16 scientist is very aware.
17 Q. Okay. And other than your work with 17 Q. Had you studied any of the documents
18 Dr. Day on the assimilation wetlands, had you 18 that are -- that you -- some of which are
19 evaluated the Central Wetlands Unit and other 19 included in your stack that you brought today,
20 wetlands around the MRGO prior to your work on 20 such as the design memoranda for the MRGO? Had
21 this litigation? 21 you studied that before working on this
22 A. No, but they function the same way 22 litigation?
23 as other wetlands in the Pontchartrain Basin, at 23 A. No.
24 least before the La Loutre Ridge was cut. 24 MR. ANDRY:
25 Q. So, your -- okay. We have been 25 Object to the form of the

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1 question. He didn't bring the 1 refer to?
2 design memo with him. Object to 2 A. That the -- that they were building
3 the form of the question. 3 a hurricane launching pad by driving a 36-foot
4 MS. MILLER: 4 canal into the heart of New Orleans and ending it
5 One of the -- there is a 5 with an apex of a funnel to increase surge, to
6 design memorandum in one of the 6 amplify surge. That's primary. And then
7 stack of documents that he brought 7 allowing operations and maintenance to allow that
8 today. 8 to widen to an average of 1,500 feet to further
9 MR. ANDRY: 9 inject saltwater to the surge-buffering wetlands
10 Object to the form. 10 and kill them.
11 MS. MILLER: 11 Q. And are you familiar with those
12 Okay. 12 what you call warnings based on your work as a
13 EXAMINATION BY MS. MILLER: 13 wetlands ecologist in this area?
14 Q. When -- have you reviewed the design 14 A. Based on work of this case and
15 memoranda for the MRGO project? 15 knowing people like Woody Gagliano and Junior
16 A. Probably parts of it a long time 16 Rodriguez, the ex-parish president of St.
17 ago. 17 Bernard.
18 Q. You mean a long time ago, but for 18 Q. Had you met Junior Rodriguez prior
19 purposes of this litigation; is that right? 19 to working on this litigation?
20 A. Yes. 20 A. Yes. Many times. He represents --
21 Q. What else did you rely on to form 21 he represented that parish at all the restoration
22 your opinions in this case? 22 meetings that had anything to do with the parish.
23 A. The literature. 23 MR. ANDRY:
24 Q. What literature? 24 There was a design
25 A. Scientific literature -- 25 memorandum.
Page 87 Page 89
1 Q. You mean -- are there -- 1 MS. MILLER:
2 A. -- as well as what people warned the 2 He listed it when he was
3 Corps about. 3 listing the documents, which is
4 Q. Okay. So, you -- by "what people 4 how I knew that it was there.
5 warned the Corps about," are you referring to the 5 EXAMINATION BY MS. MILLER:
6 appendix in your July, 2008 report, Appendix A? 6 Q. So, have you spent time in the area
7 A. We also have some quotes in the body 7 of the MRGO?
8 of the document. 8 A. Fishing, yes.
9 Q. Did you -- have you -- you indicated 9 Q. When was the first time that you
10 that you had not seen the document that I showed 10 were in that area?
11 Dr. Day yesterday, which became Exhibit 12 to his 11 A. Probably shortly after I arrived in
12 deposition; is that right? 12 Louisiana.
13 A. That's correct. 13 Q. And were you there only for leisure
14 Q. You have not read those documents? 14 activities, like fishing, or did you go into the
15 A. I'm sure some of them. Again, 15 area for some of your work activities?
16 somebody compiled that after we wrote our report. 16 A. Well, a wetlands scientist, even
17 I mean, I don't know when they compiled it, but 17 while fishing, is always interested in observing
18 we didn't see it until our report had been 18 wetlands. So, I certainly was observing those
19 written. 19 wetlands from the early '80s.
20 Q. So, what was your basis for 20 Q. How often would you go fishing in
21 understanding the warnings that had been given to 21 that area?
22 the Corps? 22 A. Several times a year, probably.
23 A. That saltwater intrusion was going 23 Q. Where is it that you like to fish?
24 to kill the wetlands. 24 A. Actually, right in the Central
25 Q. Is that the primary warning that you 25 Wetlands, there are some -- Bayou Bienvenue is a
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1 very good place at times. Bayou Dupre. The Lake 1 triangular region is called A1. The rectangular
2 Borne area in general. 2 region -- like, I have a very bad sense of
3 Q. What are your observations of the 3 direction, but below it or to the east of it, and
4 wetlands been our fishing trips? 4 then you have Paris Road and then there's Region
5 A. Ghost cypress was pretty staggering, 5 3 and there's a Region 4, which is closer to
6 looking at the city through a field of ghost 6 Hopedale.
7 cypress. 7 Q. I think there's a picture in your
8 Q. What about the -- was there other 8 report that maybe would help us understand the
9 marsh that you observed? 9 areas you're talking about. On Page 40 --
10 A. Yeah. The fresh marsh was gone and 10 A. Yes.
11 Spartina patens brackish marsh and Spartina 11 Q. Does that show the areas that you've
12 alterniflora salt marsh, and obviously a lot more 12 just referenced?
13 water over the years. 13 A. Yes, the western area is A1. The
14 Q. When was it -- you said you arrived 14 rectangle just east of it is A2. Then, you have
15 in the Louisiana area in 1982; is that right? 15 Paris Road. And then Region A3 is about half of
16 A. Yes. 16 what's east of the remaining of the Central
17 Q. So, you between 1982 -- well, how 17 Wetlands Unit.
18 recently have you been fishing in the vicinity of 18 Q. Okay. And those are all on the --
19 the MRGO? 19 that does not include the areas to the northeast
20 A. About a year ago. 20 of the MRGO channel; is that right?
21 Q. Would you say you -- how often have 21 A. Correct.
22 you been there between 1982 and last year? 22 Q. Have you yourself been out into
23 A. No idea. 23 those areas?
24 Q. Do you go there on a regular basis? 24 A. Yes.
25 A. Sporadic. Depends on the year. 25 Q. Is that just on your fishing trips?
Page 91 Page 93
1 Q. So, between 1982 and 2008, you 1 A. No. We -- Dr. Day and I took
2 yourself have observed changes in the wetlands in 2 samples out there.
3 that area? 3 Q. What were your samples for?
4 A. Most of the conversions had already 4 A. Primarily salinity, but we also
5 happened. The area does continue to increase in 5 conducted vegetation analysis.
6 open water every year. 6 Q. And was that for a particular
7 Q. And that's something you feel like 7 research project?
8 is -- you can observe from the ground? 8 A. It's for the wetlands assimilation
9 A. No. That's something that I would 9 project.
10 know by looking at the work of John Barras and 10 Q. And have you published those
11 Del Britsch, people like that, that actually 11 sampling results anywhere?
12 measure it. 12 A. Not yet.
13 Q. Okay. So, from your -- have you, 13 Q. Do you intend to publish them?
14 with your work with Dr. Day on the assimilation 14 A. No.
15 wetlands, have you spent time in the swamp area 15 Q. Did you take -- is that part of --
16 of the Central Wetlands Unit? 16 A. Let me say one thing. We did make a
17 A. There's almost no swamp area left, 17 final report out of our study. So, in the gray
18 but we did visit that little, tiny patch of swamp 18 literature, we actually have salinities in that
19 that was salvaged by the Gore pumping station and 19 report.
20 the River Bend oxidation pond. 20 Q. What is the report called?
21 Q. Have you visited other areas? 21 A. It's called a feasibility study of
22 A. Yes. 22 turning this entire Central Wetland -- the entire
23 Q. As part of your -- well, what other 23 28,000 acres into an assimilation wetland,
24 areas have you been into? 24 replanting them with cypress, up to six million
25 A. Well, we have these names. The 25 of them.
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1 Q. So, is your work with Dr. Day on 1 Q. Do you recall observing other
2 that study part of what informs your expert 2 species --
3 opinions in this case? 3 A. Yes.
4 A. Yes. 4 Q. -- other than the ghost cypress that
5 Q. What did you observe about the 5 you referenced?
6 wetlands during your evaluations for that study? 6 A. Very limited smatterings. There are
7 A. Salinities of around 11 parts per 7 never going to be monocultural stands. There
8 thousand, lethal to cypress. And, again, the 8 might be an aster here and there, that sort of
9 vegetation was dominated by Spartina patens and 9 thing.
10 Spartina alterniflora, wire grass and cordgrass, 10 Q. So, what -- from where do you gain
11 saltwater -- brackish and saltwater species. 11 your knowledge of the plants that existed in the
12 Q. Do all of the wetlands species that 12 Central Wetlands area and the other wetlands
13 you have been describing, do they typically have, 13 surrounding the MRGO prior to the existence of
14 like, their scientific name and then a name like 14 the MRGO?
15 wire grass and cordgrass? 15 A. One of the first things a wetland
16 A. Depends on who is speaking about 16 scientist in studying must learn are the names of
17 them and what the purpose is. 17 the plants.
18 Q. But is the -- are the terms wire 18 Q. So, how do you know what was in the
19 grass and cordgrass something that are understood 19 vicinity prior to the MRGO construction?
20 in the scientific community to refer to the 20 A. From photographs like this in our
21 species? 21 supplemental report, from maps that have been
22 A. Whenever you refer to a particular 22 produced from the '30s, '50s, '60s, '70s, so
23 species, you use the Latin name because common 23 forth.
24 names come and go. Spartina alterniflora is 24 Q. You mentioned Henry Rodriguez and
25 always called oyster grass. It's also called 25 having -- or Junior Rodriguez -- they're the same
Page 95 Page 97
1 smooth cordgrass. So, it's always Spartina 1 person, correct?
2 alterniflora. 2 A. Right.
3 Q. So, the use of the colloquial terms 3 Q. Having -- you've had conversations
4 can result in potentially a misunderstanding of 4 with him many times over the years regarding
5 what plants are actually there or what plants are 5 these wetlands; is that right?
6 actually being discussed, is that -- 6 A. Every time you talk to that man,
7 A. Yes. 7 he'll give you some horrific story on what MRGO
8 Q. Okay. So, you primarily -- can you 8 killed and how long it's taken to close it.
9 tell me the scientific names for wire grass 9 Q. Does he have a background in
10 and -- is it -- 10 ecology, to your knowledge?
11 A. Cordgrass, one word, 11 A. I have no idea. It's -- he's very
12 C-O-R-D-G-R-A-S-S, one word. 12 passionate about what happened.
13 Q. What were those scientific names 13 Q. Okay. So, to determine the type of
14 again? 14 wetland vegetation that preexisted the MRGO, you
15 A. Spartina patens -- 15 rely on maps -- what type of maps?
16 Q. That's the wire grass? 16 A. Well, you try to assemble as many
17 A. Yes. 17 different maps as possible to see where there are
18 Q. Okay. And the cordgrass is what? 18 disparities and to see where you mostly have the
19 A. Spartina alterniflora. 19 same answer. So, you try to get everything
20 Q. So, in your work for the 20 that's out there, and then, also, figure out how
21 assimilation wetlands project, you primarily 21 the map was made. Like, FitzGerald, et al's job,
22 observed Spartina patens and Spartina 22 one of their jobs in this case, was to make sure
23 alterniflora to dominate the wetland area; is 23 the map that they produced was accurate -- as
24 that right? 24 accurate as could be.
25 A. Yes. 25 Q. Did you work with that group on that
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1 project? 1 A. We reviewed the 266 photos that we
2 A. We met with them several times. 2 were originally given.
3 Q. And what input did you have to the 3 Q. Okay. And from those 266, you
4 creation of the FitzGerald report? 4 selected -- is that where you selected the ones
5 A. None, to my knowledge. 5 to include in Appendix E?
6 Q. What did you discuss when you met 6 A. Correct.
7 with them? 7 Q. And what maps is it that you've
8 A. Their job was to make -- how to make 8 relied on for your understanding of the
9 the map, is the map accurate. Our job was to 9 vegetation prior to MRGO?
10 determine why the changes occurred. 10 A. FitzGerald is definitely the best.
11 Q. Okay. So, in your expert report 11 Q. Any others?
12 from July, 2008, you describe extensively the 12 A. And then we just look for
13 swamp that was once located in the vicinity of 13 consistency. So, we looked at mostly more the
14 the MRGO. Do you have a figure in your report 14 statistical information in the Corps' 1999
15 that shows where those areas of swamp were 15 document, and I looked in Woody Gagliano's
16 located? 16 deposition where he got slightly different
17 A. We just refer to FitzGerald, et al 17 values, and then Barras and Britsch. We
18 or Barras, or Del Britsch, et al. 18 basically looked at everything that had been
19 MS. MILLER: 19 produced, to our knowledge.
20 Do you think we could take 20 Q. You mean produced in the litigation?
21 another quick break? 21 A. No. No. Produced for entirely
22 MR. ANDRY: 22 different reasons. FitzGerald, for the
23 Yeah. 23 litigation, but -- but Barras' been doing this
24 THE VIDEOGRAPHER: 24 and Del Britsch has been doing this for years and
25 Off the record. 25 years, as was Penland.
Page 99 Page 101
1 (Whereupon, a discussion was 1 Q. Okay. So, you -- when you refer to
2 held off the record.) 2 Del Britsch and John Barras, you mean literature
3 THE VIDEOGRAPHER: 3 they've published over the years in their
4 On the record. 4 scientific work?
5 EXAMINATION BY MS. MILLER: 5 A. Yeah. Might be gray, but it's out
6 Q. Dr. Shaffer, you described that your 6 there.
7 familiarity with the type of wetlands in the 7 Q. What do you mean, gray?
8 vicinity of the MRGO prior to its construction 8 A. Not in a journal, not in a
9 was based on maps and photography such as that 9 scientific journal. Most of their stuff is gray.
10 that's included in your supplemental expert 10 They're government documents.
11 report; is that right? 11 Q. Okay. That's what "gray" refers to?
12 A. Yes. 12 A. Yeah.
13 Q. What other photography have you 13 Q. I wasn't familiar with that term.
14 looked at -- or -- I'm sorry. Is there 14 Do you consider those government
15 photography other than what you've included in 15 documents to be reliable sources?
16 your supplemental report that you base your 16 A. Sometimes.
17 understanding of the pre-MRGO wetlands on? 17 Q. Are they -- but they are sources
18 A. Only the Appendix E out of our 18 that you yourself relied on in forming your
19 original -- out of our full report. 19 opinions for your expert report?
20 Q. Okay. So, Appendix E and the 20 A. They are sources that we looked for
21 supplemental report photos and no other 21 consistencies or discrepancies.
22 photography? 22 Q. And did you find consistencies?
23 A. That's correct. 23 A. There are various ways of defining
24 Q. Okay. Did you review other 24 the Central Wetland Unit and there are various
25 photography for this litigation? 25 ways of deciding whether cypress should be called
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1 cypress or whether it should be called fresh 1 that you just referred to?
2 marsh, those types of things. So, for instance, 2 A. Correct.
3 the cypress swamp in the Central Wetlands has 3 Q. And you have referenced on the
4 some estimates of around 7,000 up to 15,000, 4 right-hand side the legend that refers to
5 12,000. 10,200 is a fairly consistent estimate 5 scattered cypress trees; is that right?
6 for what was originally there. But it varies 6 A. Yes.
7 depending upon what the unit is being looked at 7 Q. And did you also look at the legend
8 and then what the interpretation is. Is 51 8 on the left-hand side?
9 percent marsh and 49 percent swamp, do you call 9 A. I'm not a geologist, so, that one is
10 it a marsh or do you call it a swamp. It's a 10 not of as much interest to me.
11 crap shoot. I mean that just accounts for one of 11 Q. Why do you decide to use the legend
12 the reasons mappers map things differently. It 12 on the right-hand side as opposed to the legend
13 doesn't mean they're not doing it correctly. It 13 on the left-hand side?
14 means they're calling it a little differently. 14 A. Well, they're both on there. It's a
15 Q. And is that what Duncan FitzGerald 15 map. I mean, you can interpret either one. But
16 did, was to look and make those judgments about 16 the one that is very obvious is what is dense
17 whether to classify something as a swamp versus a 17 swamp and what is not dense swamp.
18 marsh? 18 Q. Had you seen this map that's Figure
19 A. I haven't talked to him specifically 19 4.8 from the FitzGerald report and marked as Day
20 about that. What the -- his 1930s thing -- the 20 Exhibit 7, had you seen that map prior -- when
21 area of scattered cypress, for instance, is a 21 was the first time you saw this map?
22 very good example of where Britsch went horribly 22 A. When they released their report.
23 wrong, because he said that that scattered 23 Q. So, you --
24 cypress was indicative of a swamp going down and 24 A. Or drafted their report.
25 that's where these photographs come in so handy, 25 Q. And when did you first see a draft
Page 103 Page 105
1 because it's just a swamp that's interspersed 1 of their report?
2 with very healthy marsh. That is not a degraded 2 A. Probably around the -- when we
3 swamp at all. But because it was called 3 released a draft of our report. The experts gave
4 scattered, you could interpret it as it used to 4 their reports to each other because they were
5 be more dense and now it's less dense. That's 5 just drafts.
6 just a -- that's just a complete incorrect 6 Q. Okay. And, so, your report was
7 interpretation. 7 produced July 11th, 2008?
8 Q. What is a complete incorrect 8 A. I'm talking about the earlier one.
9 interpretation? 9 Q. Oh, okay. The September, 2007
10 A. To say that that scattered marsh in 10 report?
11 the Central Wetlands was a example of already 11 A. Yes. That was a draft.
12 degradational processes going on, like the swamp 12 Q. Okay. So, you had seen this Figure
13 I mentioned in the Maurepas, which is sparsely 13 4.8 that's marked as Day Exhibit 7 prior to
14 scattered because a lot of trees have died. In 14 producing your September, 2007 report?
15 this case, these photographs don't indicate that 15 A. If they had it in that report. I
16 anything has died. It's just that they're in 16 did not recall whether that particular figure was
17 patches and they're along ridges, they're 17 in the report or not.
18 sinusoids and on natural levees and such. And 18 Q. Okay. Do you -- so, you don't
19 those are very, very healthy swamps. They are 19 recall -- do you recall when you first studied
20 just not -- they are interspersed with marsh, 20 this map?
21 very healthy marsh. 21 A. No.
22 Q. Okay. Just to make sure that we're 22 Q. Was it prior to a week ago, when you
23 understanding exactly what you're talking about, 23 began looking at photographs to produce your
24 I want to refer to the map which -- this is 24 supplemental report?
25 marked as Day Exhibit 7. Is that the 1930s map 25 A. Yes. It was around July 11 when the
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1 full reports came in. 1 Exhibit 4. -- Exhibit 7, Figure 4.8, the darker
2 Q. Okay. Did you see a draft of the 2 brown that on the right-hand side is called
3 full report from Duncan FitzGerald prior to July 3 cypress swamp corresponds with the cypress swamp
4 11th? 4 legend on the left-hand side; is that right?
5 A. It was called Penland, et al at that 5 A. Yes.
6 point. 6 Q. And the right-hand side lighter
7 Q. Okay. Did you see any version of an 7 color that corresponds with scattered cypress
8 expert report produced in April, 2008? 8 trees on the right-hand legend --
9 A. I don't remember. 9 A. Correct.
10 Q. Okay. This Figure 4.8, Day Exhibit 10 Q. Is that -- which category on the
11 7, says that it's -- under Notes: 11 left-hand side does that equate with?
12 "Base map is mosaic of U.S. 12 A. The scattered swamp is overlaying
13 Coast and Geodetic Survey T-sheets 13 marsh, just as these photos demonstrate.
14 dated 1930s. 14 Q. Do you know -- okay. And it's --
15 "Cypress trees delineated 15 so, on the 19 -- okay. And your opinion is that
16 from 1930s T-sheet base map." 16 the -- what is on the right-hand side called
17 Have you looked at those base maps 17 scattered cypress trees, on the left-hand side,
18 that are referenced there? 18 you're saying that corresponds with marsh?
19 A. They produced some of the base maps 19 A. I'm saying these photographs
20 and appendices. I'm not sure that that one is in 20 demonstrate very clearly that there are large
21 the appendix, the base map for it. But the base 21 patches of cypress swamp as well as long
22 map for the '50s and the base map for the '60s is 22 sinusoidal features of cypress swamp interspersed
23 in the appendix for FitzGerald, et al. 23 with very healthy marsh.
24 Q. So, if it's not in the -- well, do 24 Q. Okay. And you were -- it looks like
25 you recall whether you've reviewed the base map 25 there are little -- did you call them little
Page 107 Page 109
1 from the 1930s that this Figure 4.8 cites? 1 balls that you can't -- it's hard to distinguish
2 A. I have no idea. 2 where they're referring to upland trees versus
3 Q. As far as you know, you have not 3 cypress swamp; is that right?
4 looked at it? 4 A. Yeah, but since they don't color
5 A. I've just seen that map right there. 5 anything on the west side of the river, it -- it
6 Q. Okay. So, looking at that map -- 6 could be interpreted as not being cypress swamp
7 I'll get my own copy so you can look at that 7 or they just don't care about anything but the
8 one -- if you'll take a look at the legend on the 8 Central Wetlands. And since they're
9 left-hand side, can you tell me which category on 9 concentrating on the Central Wetlands, since
10 the left-hand side corresponds with the 10 those are the wetlands that MRGO killed, I'm
11 categories on the right-hand side? 11 pretty sure that the colored area is the area of
12 A. Marsh, and then I can't tell for 12 interest.
13 sure whether they're depicting the western side 13 Q. Okay. And do you have -- can you
14 of the Mississippi River as swamp or upland 14 draw any inferences from this map regarding
15 trees. They both have that -- those little balls 15 why -- where the right-hand side labels scattered
16 on them. And then there's some darker shading 16 cypress trees that color does not include any of
17 called farmland cultivated and developed. 17 those little balls?
18 Q. Okay. So -- 18 MR. ANDRY:
19 A. Oh, I see. The cypress swamp in 19 Object to the form.
20 white on the left is just laid over with brown. 20 A. That's because it's laid over marsh.
21 Q. Okay. And what about the marsh with 21 It's correct. That's why it's not called cypress
22 scattered cypress trees on the left-hand side? 22 swamp. They call it scattered cypress trees to
23 A. So, it's overlaid the marsh. It's 23 say that it's interspersed with marsh. So, the
24 interspersed with marsh. 24 main area is marsh, but there's a considerable
25 Q. Okay. So, the darker brown on 25 amount of cypress in amongst the marsh. It's a
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1 perfect overlay. 1 A. Correct.
2 EXAMINATION BY MS. MILLER: 2 Q. And what was the date of this
3 Q. Okay. 3 particular photograph in Figure 2?
4 A. It's a fresh marsh that has a lot of 4 A. Just after Katrina, probably
5 cypress in it, as we can demonstrate with our 5 November of 2005, maybe December.
6 supplemental report. 6 Q. Is that exact date available on the
7 Q. Okay. And in your experience 7 website?
8 studying the Lake Pontchartrain Basin -- which -- 8 A. Most likely. I'm sure somebody
9 well -- I'll come back to that. 9 could give you the date.
10 Okay. So, other than maps in the 10 Q. And do you know who was responsible
11 FitzGerald report, have you reviewed other maps 11 for taking these photographs?
12 for purposes of this litigation? 12 A. I do not.
13 A. Like I said, we looked at all of 13 Q. Do you know what the exact location
14 the -- all of the available land loss information 14 of this photograph is?
15 that we could put our hands on. 15 A. I believe it's called Goat Island,
16 Q. Okay. Will you turn to your July, 16 just north of the Honey Island Swamp.
17 2008 report on Page 17, Figure 2. 17 Q. Do you know the latitude and
18 A. Yes. 18 longitude of that area that we might be able to
19 Q. Dr. Day said yesterday that you 19 locate this on the website?
20 selected this photograph; is that right? 20 A. That certainly could be determined.
21 A. Correct. 21 I didn't take it down, no.
22 Q. And why did you select this 22 Q. How does one, like -- how are these
23 photograph for inclusion in your report? 23 photographs organized on the website that we
24 A. This is one of many, many that I 24 might be able to go in there and find this?
25 extracted from Louisiana Department of Natural 25 A. If you looked at any map that showed
Page 111 Page 113
1 Resources' website. It's a free website that you 1 the path of Katrina, then, we took this near the
2 can go in and blow up aerial photographs from 2 eyewall and, so, if you follow the path of
3 2004, and because of Katrina, they reshot them in 3 Katrina up the Pearl River, you could find this
4 2005. So, what you were asking yesterday, is 4 exact photograph. I made it this size, too. I
5 there a prefigure of this figure, there is, and I 5 could make it any size. The website lets you
6 have it. I just didn't put it in the report. 6 just make a window and click.
7 Q. Why did you not include it in the 7 Q. Why did you select this particular
8 report? 8 portion of the photograph?
9 A. Honestly, it's a good idea. I think 9 A. It's a very good demonstration of
10 if we have another version, we'll have the 2004 10 what happened where you can actually see they
11 next. It's generally what I do when I give my 11 look like little toothpicks. These are huge,
12 hurricane talks. I put the two figures next to 12 huge oak trees and sweetgums, and then you see
13 each other. 13 this ring of cypress and tupelo that is clearly
14 Q. Why did you select this particular 14 largely undamaged.
15 image? 15 Q. How can you tell that the brown
16 A. Like I say, I selected many, many, 16 areas are a particular type of tree?
17 but this shows what Jeff Chambers at Tulane 17 A. People ground truthed it. Jeff
18 published in 2007 in the journal "Science," that 18 Chambers of Tulane and coauthors as well as
19 bottomland hardwoods in Katrina's path fell over, 19 Louisiana Wildlife & Fisheries, people like Randy
20 320 million of them, and the cypress swamp stood 20 Myers, as well as people at LSU walked transects,
21 strong. 21 determined that most of the fallen trees were
22 Q. So -- I'm sorry. You said that 22 bottomland hardwoods.
23 there are some photographs of this area available 23 Q. On Page 70 of your report, you list
24 on the website that are dated 2004; is that 24 something by Chambers. Is that what you're
25 right? 25 referring to?
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1 A. Does it say 2007? 1 A. Yeah, but the eyewall -- I'm talking
2 Q. Yes. 2 about the movement of the hurricane's eyewall.
3 A. Yes. 3 It's a straight line right up through the Pearl.
4 Q. "Hurricane Katrina's Carbon 4 Q. Of many miles, right?
5 Footprint on U.S. Gulf Coast Forests"? 5 A. Yes.
6 A. Yes. 6 Q. Okay. So, can you -- like, is there
7 Q. So, based on that article, you 7 anything more specific that we -- that you can
8 learned that the bottomland hardwood trees were 8 help us identify which part of the track this
9 impacted more than cypress trees during Hurricane 9 photograph comes from?
10 Katrina? 10 A. Again, this ring here is very
11 A. Based on Hurricane Betsy, Camille, 11 distinct. It's very easy to find this ring.
12 Andrew, Hugo, Katrina, all of those -- all of 12 It's not often that you find a circle of cypress
13 those storms demonstrated that cypress stand 13 trees. So, this ring, again, I think it's Goat
14 strong during hurricanes and hardwoods fall down. 14 Island, is right on the eyewall of Hurricane
15 Many, many authors have documented this. 15 Katrina, above Honey Island Swamp.
16 Q. Okay. What are -- okay. So, the 16 Q. Okay. And do you know why -- what
17 brown areas are what type of tree? 17 is the significance of this ring?
18 A. Bottomland hardwood forest, oaks, 18 A. There's obviously a low-lying
19 sweetgums. 19 feature there, like a slough.
20 Q. And what evidence from Hurricane 20 Q. What's a slough?
21 Betsy supports that same condition? 21 A. In a bottomland hardwood forest,
22 A. We have cited all of the authors 22 generally, you'll have lower elevations, natural
23 that have produced reports posthurricane. 23 geologic formations of depressional areas, and
24 Q. Okay. So, based on the Chambers 24 that's why you get a mixture of cypress swamp,
25 article, you then went and looked in this 25 cypress-tupelo swamp, and bottomland hardwoods.
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1 particular area to try and find a photograph that 1 Wherever there's a depressional area, the swamp
2 represented what you were saying; is that right? 2 comes in.
3 A. No. I produced these before 3 MR. ANDRY:
4 Chambers. An ex-student of mine, Randy Myers and 4 Southwest Louisiana, they
5 I, who works for Wildlife & Fisheries, he knew of 5 call it a trenass.
6 the flyovers, and he actually had also documented 6 THE WITNESS:
7 that -- what fell down and what didn't fall down, 7 Well, these are generally
8 by and large. 8 bigger than trenasses. What I
9 Q. Okay. So, if we wanted to try and 9 think of as a trenass is something
10 find this photograph to look at the surrounding 10 you put a pirogue in. But,
11 area on the website, how do we -- what do we pull 11 anyway, scientists call them
12 up? There's something marking this as 2005 12 sloughs.
13 photography? 13 EXAMINATION BY MS. MILLER:
14 A. Correct. 14 Q. So, is it the actual -- it looks
15 Q. And then we -- is the track of 15 like there's kind of a -- almost like you can see
16 Hurricane Katrina marked on the photography? 16 a channel or something.
17 A. No. 17 A. Yeah. The area obviously gets wet
18 Q. So, we'd know from our own 18 quite a bit or there wouldn't be cypress and
19 investigation where the track went? 19 tupelo there.
20 A. Everybody knows where the track went 20 Q. So, you're saying that where the
21 if they've looked at Hurricane Katrina maps, land 21 green area is is lower than the brown area?
22 loss maps. 22 A. Yes.
23 Q. Okay. So, how -- I mean, that's a 23 Q. Okay. Is there any significance to
24 pretty large area, right, that the hurricane 24 the fact that these trees form a ring?
25 covered? Is that right? 25 A. No. Again, the ring is very unique.
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1 That's why -- one reason I chose this. It's a 1 Katrina?
2 very photogenic picture. 2 A. Branches were knocked out. There
3 Q. Okay. In your report, on Page 16, 3 was more lightning to ground the year following
4 you describe live oak as being more resistant to 4 Katrina, the herbaceous land cover got denser,
5 windthrow than cypress. 5 and then the year after that, the swamp bushed
6 A. Correct. 6 back out and the herbaceous layer got sparser.
7 Q. But here you're saying that the 7 So, there's an inverse relationship.
8 cypress survived better than the oak in Figure 2? 8 Q. Was that area flooded during
9 A. Those oaks are very likely not live 9 Hurricane Katrina?
10 oaks. If there were live oaks in the area, 10 A. Yes.
11 they'd still be standing. 11 Q. By the storm surge?
12 Q. What's the difference between live 12 A. Yes.
13 oak and oak? 13 Q. To what extent was it flooded, do
14 A. Most of these are probably water 14 you know?
15 oak, which is a much shorter-lived oak, and very, 15 A. Five feet.
16 very susceptible to windthrow. 16 Q. And do you know how long that
17 Q. Can you determine from looking at a 17 flooding lasted in that area?
18 photograph like this whether something is a live 18 A. A long time, because of Rita. The
19 oak or oak? 19 water was unable to escape before Rita came in
20 A. You can infer it because of all the 20 and flooded it even higher.
21 previous studies that show that live oaks don't 21 Q. And does that have an impact on the
22 fall down in hurricanes. 22 ability of the swamp to survive?
23 Q. But from looking at the photograph 23 A. No, because even if it was
24 and what is visible there, can you tell anything 24 saltwater, it would get washed back out again.
25 about the trees that lets you know what -- other 25 Especially during hurricanes, you generally have
Page 119 Page 121
1 than -- 1 a lot of rainfall. So, you've got freshwater
2 A. You'd have to ground truth it. 2 that's going to push that tongue back out into
3 Q. Okay. So, even in the 2004 3 the ocean.
4 photographs prior to Katrina, would you be able 4 Q. So, the rainfall is enough to
5 to look at this photograph and determine what 5 counteract the saline water coming in with the
6 kind of trees were there? 6 storm surge?
7 A. It would be better to ground truth 7 A. With time. Every hurricane's
8 it. 8 different. If there's a dry period before the
9 Q. And do you know that -- whether -- 9 hurricane, more salt gets into the soil. If it's
10 what's the name of the person you worked with 10 wet, goes out fairly quickly.
11 that you mentioned, Myers? 11 Q. And that is true throughout the
12 A. Randy Myers. 12 coastal swamps; is that right?
13 Q. Did either you or Randy Myers ground 13 A. Yes.
14 truth this area? 14 Q. That the impact from any given
15 A. Many people were sent in, most for 15 hurricane would be variable.
16 different purposes, to document what happened 16 A. Yes. But in -- despite that,
17 after Katrina. I did not do -- I went into the 17 because cypress lives so long, we know that they
18 Maurepas Swamp and did a very similar thing. 18 can handle tens and tens of hurricanes. So, they
19 Documented that we have dense -- first of all, 19 probably can handle all types of hurricane storm
20 documented that cypress and tupelo did not fall 20 surge. Otherwise, we wouldn't have swamps.
21 down, but when stands are dense, they actually 21 Q. Do you agree with the assessment in
22 held the mid-story ash and maple in place as 22 the Penfound and Hathaway article from 1938 that
23 well. 23 hurricane surge resulted in ghost forests in the
24 Q. What other results did you observe 24 basin?
25 on the Lake Maurepas Swamp after Hurricane 25 A. No. As Dr. Day was stating
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1 yesterday, it could have happened in the more 1 assume. Yeah. That's an assumption. I just
2 distal portions, below Bayou La Loutre, but what 2 provided the information. I have no idea how it
3 probably happened there is that in 1927, when 3 was used.
4 they cut off the crevasses and that area as a 4 Q. Okay. Have you reviewed the reports
5 whole was receiving a lot less freshwater from 5 of the storm surge modelers?
6 the water budget, less sediments, less nutrients, 6 A. No, I haven't. Paul -- Paul Kemp's,
7 that the most distal cypress swamps would then be 7 I reviewed -- I read Paul Kemp's report.
8 saltier, and that's probably what created the 8 Q. Okay. And did it indicate in Paul
9 ghost cypress, and that could have been 9 Kemp's report what he had done with any of the
10 exacerbated by the hurricanes. 10 information you had provided to him?
11 Q. So that, you would mean in the area 11 A. No. Other than Collins
12 of La Loutre Ridge and the Central Wetlands? 12 coefficients, stem density, stem height, better
13 A. South of there. Central Wetlands 13 than the Manning coefficient of roughness that
14 would do just fine. 14 they used in the wave models.
15 Q. So, you don't think that salinity 15 Q. What is a Collins -- so, you
16 intrusion from hurricanes would have had an 16 provided Collins coefficient?
17 impact on the Central Wetlands? 17 A. No. I have no idea how to provide a
18 A. I think the salt would -- even if 18 Collins coefficient, but since it's based on stem
19 the salt got in, it would get back out because 19 densities, they wanted me to supply them the
20 the water budget was primarily fresh. You can 20 various stem densities so they could do a
21 determine that by the marsh plants, especially, 21 sensitivity analysis.
22 that are associated with swamp. Giant cut grass 22 Q. Okay. The Dutch wanted that or Paul
23 is a freshwater species, and it would go down 23 Kemp wanted that?
24 very quickly after a hurricane, and it's all over 24 A. I assume all of them, they were
25 these photographs. 25 collaborating, but I don't know.
Page 123 Page 125
1 MR. ANDRY: 1 Q. Okay. So, your direct interaction
2 What time you have to leave? 2 was only with Paul Kemp?
3 DR. DAY: 3 A. Correct.
4 Now. 4 Q. Have you met any of the Dutch
5 MR. ANDRY: 5 modelers?
6 Is this a good time? 6 A. I have not.
7 MS. MILLER: 7 Q. Have you been involved in conference
8 Sure. That's fine. 8 calls with them?
9 (Whereupon, a discussion was 9 A. Yes.
10 held off the record.) 10 Q. How frequently?
11 THE VIDEOGRAPHER: 11 A. I think they were on two of them.
12 On the record. 12 Q. Two. Okay. Were -- did they
13 EXAMINATION BY MS. MILLER: 13 participate by conference call in the meeting you
14 Q. Dr. Shaffer, yesterday in 14 had this past Monday?
15 questioning Dr. Day, he indicated that you 15 A. They were supposed to. I don't
16 provided information to the Dutch team that's 16 remember them -- I don't think so.
17 doing storm surge modeling for the plaintiffs; is 17 Q. You were looking to your counsel.
18 that correct? 18 Is there someone that might be able to help you
19 A. Indirectly. 19 remember?
20 Q. What do you mean, "indirectly"? 20 A. I just don't remember. It was all
21 A. Through Paul Kemp. 21 Duncan FitzGerald. He was on the only one on the
22 Q. So, you provided information to Paul 22 line.
23 Kemp and, as far as you know, Paul Kemp provided 23 Q. Oh, okay. On Monday?
24 it to the Dutch? 24 A. On Monday.
25 A. I don't know what he did, but I 25 MR. MEUNIER:
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1 I can help you with memory, 1 we have plots that range from highly degrading to
2 but you maybe don't want me to. 2 potentially sustainable. So, we have the full
3 EXAMINATION BY MS. MILLER: 3 spectrum at least in the Pontchartrain Basin. I
4 Q. What were you discussing with Duncan 4 also looked at the literature, authors like
5 FitzGerald on Monday? 5 William Connor and Frank Megonigal, that did
6 A. We were trying to set up logistics 6 studies in the areas that had higher stem
7 for these depositions. They were just preparing 7 densities.
8 us. 8 Q. Are those publications cited in your
9 Q. Your -- the plaintiffs' attorneys 9 report?
10 were preparing you? 10 A. They are.
11 A. Correct. 11 Q. The Connor and Megonigal?
12 Q. Did FitzGerald assist you in 12 A. Yes. I'm sure they are. If not,
13 producing the supplemental report that you and 13 they're in my "Journal of Coastal Research"
14 Dr. Day provided yesterday? 14 manuscript.
15 A. No. 15 Q. Would Connor be the lead article and
16 Q. Do you have an understanding of how 16 Megonigal --
17 Collins coefficients are used in storm surge 17 A. They are both the first authors of
18 modeling? 18 et als.
19 A. Only from what I have talked with 19 Q. Okay. Yeah. I don't see those
20 Paul Kemp, and that is modeling used to be 20 listed. Can you tell me the title of the
21 limited to Manning coefficients, which are 21 publications?
22 antiquated compared to a Collins coefficient, 22 A. I cannot. I mean, I certainly could
23 which was derived very recently, from what I 23 find it for you. I have it in one of my tables
24 understand, out of Cambridge. 24 for general coastal research publication.
25 Q. Okay. So, you have little 25 Q. Is that something that's already
Page 127 Page 129
1 familiarity with the Collins coefficient itself? 1 been published?
2 A. Absolutely no familiarity other than 2 A. It's coming out. It's in press
3 what goes into it. 3 right now.
4 Q. Okay. Okay. And what about the 4 MS. MILLER:
5 Manning coefficient? 5 We would like to get the
6 A. Again, I don't use coefficients of 6 titles of those.
7 that sort. I'm not a spacial modeler. 7 THE WITNESS:
8 Q. So, Paul Kemp has given you the 8 You have the actual -- you
9 information about the recency of each 9 have that, my JCR paper.
10 coefficient's development; is that right? 10 MR. MEUNIER:
11 A. Yeah. 11 Does is it cite the Connor
12 Q. And his opinion of which one may be 12 article?
13 better or worse? 13 THE WITNESS:
14 A. Correct. 14 Connor is in that paper,
15 Q. Okay. But you yourself don't have 15 yes. Absolutely.
16 any knowledge of that area? 16 EXAMINATION BY MS. MILLER:
17 A. Correct. 17 Q. How do you know that we have that
18 Q. So, what did you provide to Paul 18 paper?
19 Kemp regarding stem density? 19 A. Well, I don't know for a fact, but I
20 A. A number of things. I think I told 20 think that Dr. Mack was asked to compile papers,
21 you earlier that we have 48 625-square-meter 21 and I think that I had to pull that off of my
22 plots, permanent plots, in the Maurepas Swamp 22 machine because it didn't get printed yet. It's
23 that we take data on regularly, and one of the 23 only in manuscript form. I think I just remember
24 things we have kept track of for eight years now 24 that. I'm not positive.
25 is stem density, basal area, also diameter, and 25 Q. Okay. So that you -- at least --
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1 your recollection is that you provided it to the 1 conditions.
2 plaintiffs' attorneys? 2 Q. Okay. So, those two publications
3 A. Sarah Mack, Dr. Mack. 3 gave you the data for swamps with higher stem
4 Q. Okay. But you beyond that don't 4 density?
5 know for sure whether it was given to the United 5 A. Correct.
6 States? 6 Q. Okay. So, did you then provided
7 A. No. 7 that -- would you call that a statistic or data?
8 Q. Okay. So, will you tell me again 8 A. It was a statistic, mean.
9 the title of that unpublished manuscript, right, 9 Q. Okay.
10 at this point? 10 A. I think I supplied the standard
11 A. Yes. It's something like the 11 errors, too, so I gave them a measure of
12 Maurepas Swamp Trajectory to Open Water: Can It 12 variance.
13 Be Reversed? That's a paraphrase. That's not 13 Q. Okay. Do you recall what the
14 the real title. 14 standard of error is?
15 Q. Okay. 15 A. Do I know what it is? I teach
16 A. It was accepted December of -- I 16 statistics. So, I mean, you want the formula?
17 mean, August of 2007, and it's been held hostage 17 Q. No, not the term standard of error,
18 since then. 18 but do you remember --
19 Q. And it's being published in which 19 A. It differs for every plot.
20 journal? 20 Q. Okay. So, for each -- you
21 A. "Journal of Coastal Research." 21 provided the information that you got from the
22 Q. And by being held hostage, was there 22 publications by Connor and Megonigal and you also
23 a particular reason why it's delayed in 23 provided your data from your 48 plots in the
24 publication that you know of? 24 Maurepas Swamp?
25 A. They're putting it -- it got 25 A. Yes.
Page 131 Page 133
1 accepted as a regular submission and they're 1 Q. Okay. And each of those pieces of
2 putting it in a special issue and there are many 2 information has an error rate that was provided
3 authors that are a lot slower than my team. 3 with it?
4 Q. Okay. 4 A. Yeah. Any time you take a mean, you
5 MS. MILLER: 5 have a variance.
6 Well, we will look for -- 6 Q. And the variance differs then for
7 for that and, if not, if it's not 7 each plot because you're calculating the
8 something we can find, obviously, 8 statistic for each individual plot?
9 we'll be able to get it from you? 9 A. Just as the mean differs.
10 MR. MEUNIER: 10 Q. Okay. So, you then, from your 48
11 Uh-huh. 11 plots, determined which of those were considered
12 MS. MILLER: 12 degraded swamp?
13 Okay. 13 A. Correct.
14 EXAMINATION BY MS. MILLER: 14 Q. And then your other category was --
15 Q. So, you relied on an article by 15 A. Relic.
16 William Connor and -- what's the first name of 16 Q. Okay. Relic swamp that has the
17 the Megonigal? 17 capability of being restored?
18 A. Frank. 18 A. So does degraded.
19 Q. Frank. And, briefly, what is the 19 Q. Okay. You classified them as
20 information that you gleaned from those two 20 degraded, relic swamp and then higher density
21 articles? 21 swamp. What was your --
22 A. I was just looking for swamps with 22 A. Potentially sustainable.
23 higher stem densities than the Maurepas. I just 23 Q. Okay. And the potentially
24 wanted the full spectrum. To do a sensitivity 24 sustainable statistic is the one that you got
25 analysis, you want the full spectrum of 25 from the Connor and Megonigal articles?
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1 A. No. We have potentially sustainable 1 mid-story -- and total, which is canopy species
2 swamp in the Maurepas, just about 13 percent. 2 plus mid-story species. You see the total is
3 Q. Okay. So, you gave then about four 3 always bigger than canopy in terms of counts,
4 category -- or did you give four categories of -- 4 that it's including maple and ash. Want me to
5 A. No. Those would also be 5 point it out to you?
6 potentially. They're just dense swamp. A 6 Q. Yes.
7 potentially sustainable swamp is going to be 7 A. Stems, that means there were ten
8 denser than a relic swamp, which is going to be 8 plots that we looked at for degraded, and that
9 denser than a degraded swamp. 9 canopy stems were 528 -- well, the mean down
10 Q. Okay. And do you have -- in what 10 here, 220, whereas, the total stems, 272.
11 format did you provide this information to Paul 11 Q. You said 220.
12 Kemp? 12 A. 240, 272. So, this number is always
13 A. A Word file, which is just one page, 13 going to be bigger than that number and the
14 which I already showed you this morning, which 14 reason it's not much bigger here is that the
15 has the summary of statistics on it and also how 15 mid-story is dead.
16 I arrived at -- I, also, make in a PowerPoint 16 Q. Okay.
17 little stem density map. The logic that went 17 A. So, go to this one. Mean, 555.
18 into that. Same document. 18 Mean, 1,110.
19 Q. Do you have a picture of the -- 19 Q. Okay.
20 A. Right there. It's right on top. 20 A. So, there's lots of mid-story here.
21 Right to your right on top. Yeah, there. That's 21 Q. So, the first column, Canopy Stems,
22 it right there. And then what's underneath it. 22 that reflects cypress in the Maurepas Swamp?
23 Q. Okay. So, this single page is the 23 A. Cypress and tupelo.
24 Word file and this is -- this one with the dots 24 Q. Cypress and tupelo. And Total Stems
25 in the square grid is the PowerPoint? 25 includes additional trees?
Page 135 Page 137
1 A. Correct. 1 A. Yes.
2 Q. Okay. I am going to introduce these 2 Q. Okay. And Canopy Diameter, does
3 as exhibits. Can I go ahead and put a sticker on 3 that apply only to the cypress, your third
4 these actual pieces of paper? 4 column?
5 A. Sure. 5 A. Yes.
6 Q. Okay. So, the one that I'm giving 6 Q. And then Average Diameter, does that
7 you that I've put the Shaffer 2 sticker onto, 7 only --
8 that, can you explain what that -- well -- 8 A. That brings in the mid-story. So,
9 (Whereupon, Shaffer Exhibit 9 you see that one is going to be smaller than this
10 Number 2 was marked for 10 one every time because they're smaller trees.
11 identification.) 11 Brings the average down.
12 MS. MILLER: 12 Q. So, the very first column is what
13 Do you think we could get -- 13 the categories all are, and then your first
14 EXAMINATION BY MS. MILLER: 14 column of figure -- numbers and your third column
15 Q. Well, okay. I was thinking it might 15 of numbers both relate to cypress trees and
16 be helpful for me to have a copy while you're 16 tupelo --
17 explaining it. 17 A. Correct.
18 A. I can explain it while you're 18 Q. -- together. And then your second
19 looking at it. 19 and fourth column of numbers includes
20 Q. Great. Can you tell me what Exhibit 20 cypress-tupelo as well as -- what was the name of
21 2 reflects? 21 the other tree?
22 A. Yes, the three habitats that we just 22 A. Mid-story trees. They're mostly ash
23 went over, the number of plots in each one of 23 and maple.
24 those, and then the statistics for the average of 24 Q. Okay. So, mid-story is just a
25 those plots with regard to canopy species and 25 category for that type of tree?
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1 A. (Nods head affirmatively.) 1 EXAMINATION BY MS. MILLER:
2 Q. So, where you have your N of cases, 2 Q. Okay.
3 is that the number of trees in the individual 3 A. The paragraph right here explains
4 plot? 4 how we did it. We basically went out and
5 A. That's the number of plots with that 5 found -- so, the first page you're looking at are
6 habitat total. 6 canopy trees. We just measured the distance
7 Q. I see. Okay. So, these are 7 between canopy trees in a number of different
8 averages for each habitat type. They are not 8 systems and then we put them on an even grid.
9 each individual plot's amount? 9 And then to allow for some stocasticity, we
10 A. Correct. 10 flipped a coin once and then we flipped a coin
11 Q. Okay. So, what is the minimum -- 11 again. So if you flip a coin once, you're in the
12 what is that? 12 north-south cardinal. If it lands, say, tails,
13 A. So, one of the plot of that habitat 13 and then if you're in that quadrant, you flip it
14 type that had the fewest number of trees or the 14 again, figure out if it's north or south, if you
15 smallest diameter. It's the minimum value in 15 flip it this time and it goes the other way,
16 that plot. 16 you're in the east-west, and then you flip it
17 Q. Okay. So, for example, in the first 17 again and figure whether it's east or west. And
18 section, you have ten -- ten. 18 then you move the tree a couple meters in one of
19 A. Ten plots. 19 those -- you're trying to create a more random
20 Q. Your minimum is 16. So, that means 20 grid than -- again, I don't know -- I have no
21 your -- the plot that has the least number of 21 idea what they did with this. I was asked to
22 trees had 16 trees in it? 22 produce this thing, so, we wanted to make it as
23 A. Correct. 23 natural as we could. So, we didn't want to give
24 Q. Okay. And then your maximum, your 24 them an even grid of trees. That's not how --
25 plot that had the most trees, had 528? 25 that's how a human would plant them, but that's
Page 139 Page 141
1 A. So, that's the range. 1 not how they grow.
2 Q. So, the average of all your plots is 2 Q. So how does the first page differ
3 240. And the standard error, 55.9873 means 3 from the second page?
4 that -- so, each plot, you can -- well, your 4 A. Second page, the trees are no longer
5 average is 240 plus or minus 55.9873, is that a 5 uniform and some mid-story trees have been added.
6 fair way of saying it? 6 Q. So, why are the trees uniform in the
7 A. Of the standard average, which is 7 first page?
8 about 67 percent of the distribution of means. 8 A. Because we had to start somewhere.
9 Q. Okay. Did you provide Paul Kemp 9 Q. Okay. So, you are basically --
10 with the data for the individual plots not in an 10 A. I'm showing the logic.
11 average format? 11 Q. Okay. So, say we're using your
12 A. No. That's all I gave him right 12 example of ten cases, so, ten plots, and are you
13 there. That's all he wanted. 13 telling me you're trying to show how the average
14 Q. Okay. 14 number of 240 -- or the mean, 240, is distributed
15 A. Again, they're just trying to get a 15 amongst those ten plots?
16 sensitivity analysis. They want the values of 16 A. I think that one right there --
17 the various types of habitat. 17 well, it says in this paragraph how many stems we
18 Q. Okay. So, this Exhibit 3 is -- 18 started off with, and then we kept adding more
19 let's see -- one, two, three -- five pages, and 19 stems to have a denser and denser swamp.
20 can you explain what those are? 20 Q. And your flipping the coin
21 (Whereupon, Shaffer Exhibit 21 description --
22 Number 3 was marked for 22 A. That's only to move the canopy trees
23 identification.) 23 around. The rest of them were placed in at
24 A. Yeah. You can look at it while I 24 random.
25 explain. 25 Q. Placed in at random or placed in in
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1 a uniform way like they're shown on the first 1 if we make them smaller. Why is that a drawback?
2 page? 2 A. Because trees are not uniform in
3 A. Random. Just look at the page -- 3 diameter. In other words, this is a very, very
4 turn it to the last page and you'll see a fairly 4 rough first stab at trying to put a landscape of
5 random landscape of stems. 5 stems on a plot. Plus, if we made the stems any
6 Q. So, is this, though -- does this 6 smaller on that particular scale right there, you
7 reflect the data that's in the table on the 7 couldn't see the dots anymore.
8 Exhibit 2? 8 Q. So, this document, Exhibit 3 -- what
9 A. It reflects the extremes that we got 9 is this scale of this suppose --
10 for stem densities. Again, it's not going to 10 A. That's one hectare.
11 match any of these exactly. It's on average, 11 Q. Okay. What is a hectare?
12 let's have a dense stem density, and a moderate 12 A. 2.47 acres.
13 or intermediate stem density and a less than 13 Q. Okay. So, you say Figure 3 -- does
14 moderate, sparse stem density. Again, that's the 14 that mean the third page of this document?
15 approach that you would use to a sensitivity 15 A. It should.
16 analysis to see how important it is to have 16 Q. Figure 3 has 650 stems, and Figure 4
17 different densities of stems on a landscape. 17 has 824. Figure 5 has just over 1,500 stems,
18 Q. Did you provide these plots that are 18 which is about average for healthy swamp in the
19 marked as Exhibit 3 to Paul Kemp? 19 south. And then you say you derived this from
20 A. Correct. 20 the literature. Which of those numbers do you
21 Q. Okay. And you don't know -- 21 derive from the literature?
22 A. Actually, it might have been Ivor 22 A. The last one, in terms of a healthy
23 van Heerden, and it might have been both. I cc'd 23 swamp. We could derive that straight out of
24 it probably to one of the two. I just wanted to 24 Maurepas as well. But the literature has more
25 make sure somebody got it. 25 dense stands than we have in the Maurepas. So, I
Page 143 Page 145
1 Q. Okay. So, you -- by cc, who were 1 brought those in. In other words, this is not a
2 you sending it directly to? 2 too dense -- it's not overdone, by any means. We
3 A. Either Ivor or Paul. 3 could put 2,500 on that plot and you'd still be
4 Q. Oh, okay. And then the other one 4 able to find that stem density somewhere.
5 would have been the cc? 5 Q. So, you were describing to me
6 A. Uh-huh. 6 earlier that, in your opinion, describing a swamp
7 Q. Okay. So, you provided both these 7 as healthy relates more to the sheet flow of
8 documents to them? 8 water in the area and the nutrients available
9 A. I did. 9 than it does to the number of trees; is that
10 Q. And did they ask you any questions 10 right?
11 after receiving them? 11 A. The hydrology is extremely I --
12 A. They did not. 12 generally, the key single integrating factor to
13 Q. And you don't know what they did 13 ecosystem health.
14 with it after receiving it from you? 14 Q. Okay. So, health and density of
15 A. I have no idea what they did with 15 trees are not necessarily something that are
16 it. 16 equatable; is that right?
17 Q. Okay. So, in your opinion -- I 17 A. Well, you could have a healthy
18 mean, if someone were to hand this Exhibit 3 to 18 200-year-old swamp and it would have a fairly low
19 you, what would you -- how would you explain what 19 stem density because the trees would be so big
20 it means? 20 that they out-competed everything underneath
21 A. I would read this paragraph right 21 them. So, you could have a stem density -- you
22 here. 22 would have a huge basal area with a very low stem
23 Q. Okay. Okay. So, you describe in 23 density and a super healthy swamp. And on the
24 here one drawback is that the trees have 40 24 flip side of that, if it's a regenerating swamp,
25 centimeter diameters because the dots disappear 25 you might have a stem density of that high or
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1 higher, but the stems are fairly narrow, like 1 A. About the thickness of a credit card
2 this. 2 per year.
3 Q. So, what would you -- did you give 3 Q. Per year. So, then, a 50-year-old
4 Paul Kemp or Ivor van Heerden any information 4 tree might still only have reached the five
5 about the size of trees other than, right, the 5 centimeters?
6 diameter? 6 A. Yeah.
7 A. No. Diameter is a very good measure 7 Q. Is that what you would consider your
8 of size. 8 degraded swamp?
9 Q. And what -- but did you give them 9 A. Well, the Maurepas is on that
10 any information about tree diameter? 10 trajectory, for the most part, downwards, so,
11 A. It's right on the page there. 11 many of the trees in the Maurepas grow about the
12 Q. I don't see diameter. 12 thickness of a credit card in a year.
13 A. These are diameters. At least, I 13 Q. And for how long do you think that
14 think they are. 14 has been their growth rate?
15 Q. Well, I mean, you say the trees -- 15 A. Ever since they put the river -- or
16 A. Right here. 16 put the levees on the river. It's been slowing
17 Q. Oh, sorry. Okay. I missed that. 17 down over time. It's probably considerably
18 So, that means the average diameter of the trees 18 slower now than it was in the '50s, for instance,
19 in the plot? 19 because sea level has risen, saltwater intrusion
20 A. Correct. 20 has increased.
21 Q. And they're in centimeters. So, 21 Q. Have you measured -- measured that,
22 your minimum in a sustainable swamp, which is 22 or do you have a way to measure the change in
23 the -- you consider the healthiest of those 23 growth rate over the past, say, 100 years?
24 reflected on this categorization? 24 A. Yeah. I don't do it. It's
25 A. Correct. 25 dendrochronology. You take a core of the tree
Page 147 Page 149
1 Q. The minimum is 5.99 centimeters, and 1 and look at the rings and measure their widths.
2 the maximum is 123.54 centimeters. It seems like 2 Several people in Louisiana do that, but I don't.
3 a pretty large range. So that your mean comes 3 Q. Have people done that for the
4 out to 27.9652. Is that what you considered to 4 Maurepas Swamp?
5 be the average diameter of a healthy swamp tree? 5 A. Not successfully. Cypress is
6 A. Depends how old it is. 6 particularly hard to age. It's got false rings.
7 Q. What would -- do you have any 7 It has double rings some year when it's gone
8 estimate of the age of these trees you were 8 dormant for whatever reason and then spurts back
9 measuring? 9 out again in the fall. They're very difficult to
10 A. One hundred to 120 years. 10 age. Couple people in Louisiana can do it.
11 Q. In the Lake Maurepas Swamp? 11 Q. Who are those people?
12 A. Yes. 12 A. Tom Doyle of the National Wetlands
13 Q. Okay. So, 100 to 120 might have an 13 Research Center, Richard Keim at LSU, Joy Young
14 average -- do you have an estimate of what the 14 at -- actually, I don't know where Joy is right
15 average diameter might be for a healthy cypress 15 now. I think she's at the National Wetlands
16 swamp tree that's 50 years old? 16 Research Center, too. That's about it.
17 A. It depends on the hydrology. It 17 Q. And where -- for what swamps have
18 could be easily bigger, way bigger than that. 18 those three people measured the growth rate of
19 Cypress with a correct hydrology can grow 30 feet 19 the cypress trees?
20 tall in ten years. 20 A. Well, I'd have to look at -- have to
21 Q. And how much -- how large is the 21 look at their papers, but I know Tom Doyle has
22 diameter of a -- 30-foot-tall cypress trees? 22 done some dendrochronology after Andrew.
23 A. Probably about a foot. 23 Q. After Hurricane Andrew, you mean?
24 Q. And if you don't have a good 24 A. Yes. And I think Joy Young has done
25 hydrology, what is the growth rate of a cypress? 25 some in Jean Lafitte and also Cat Island, what
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1 Dr. Day was talking about yesterday, where the 1 know it was dense.
2 big, old growth cypress are. 2 Q. It was very easy for who to get lost
3 Q. That's near Baton Rouge? 3 in that swamp?
4 A. Yeah. 4 A. He was a boy then. For himself.
5 Q. And where is the Jean Lafitte? 5 He's an avid outdoorsman, not someone like me
6 A. It's right near here. It's just 6 that gets lost anywhere.
7 west of where we are right now. 7 Q. And how old was he at the time he
8 Q. West of downtown New Orleans? 8 was talking about getting lost?
9 A. Yes. 9 A. I don't remember. I want to say
10 Q. So, is it on the west bank of the 10 probably a teenager, maybe a young man.
11 river? 11 Q. And do you have any knowledge of his
12 A. Yes. 12 sense of direction at age 13, 15?
13 Q. Okay. Did you look at the 13 A. Absolutely not, but these locals are
14 publications by those three scientists prior to 14 very, very good at not getting lost.
15 producing this information that you gave to Paul 15 Q. Well, do you think -- well --
16 Kemp and Ivor van Heerden? 16 A. You'd have to talk to him.
17 A. No. When you're doing a stem 17 Q. Right. Is this something that he
18 density plot, we're really not interested in 18 discussed with you on your phone call this
19 growth rate. 19 Monday?
20 Q. Do you know what they intended to 20 A. We -- well, John talked to him --
21 use the stem density plot for? 21 Dr. Day talked to him. I did not talk to him.
22 A. I do not. I mean, I assume the wave 22 So, I didn't hear his responses.
23 model. I assume that we know that cypress are 23 Q. So, he was not on a conference call?
24 extremely effective of knocking waves off of 24 A. No, he was not. He was on Jon
25 surge. So, I think the sensitivity analysis was 25 Andry's phone.
Page 151 Page 153
1 to provide lower densities and see if they worked 1 Q. And you don't know what he and Dr.
2 just as effectively, you know, what is the 2 Day discussed?
3 decrease in reduction of waves, but they are 3 A. Roughly, I believe, part of it
4 extremely effective. Mazda, et al and Brinkman, 4 was -- was how rapidly he saw the cypress dying
5 et al from '97, which we do cite in our report, 5 after the La Loutre Ridge was cut, and he just
6 say that just a hundred meters or 150 meters of a 6 confirmed it was very rapid.
7 wetland forest can knock storm -- can knock the 7 Q. This is Dr. Day's rendition of the
8 waves off of a storm surge by 20 to 50 percent. 8 conversation to you?
9 A very narrow band. Where we had one to three 9 A. I was sitting -- he was sitting
10 miles thick of cypress in the Central Wetlands 10 there and I was sitting here. We were doing
11 Unit, there's no waves going through there. 11 different things, but that's all.
12 Q. What do you mean -- at what time 12 Q. Okay. But you didn't inquire of him
13 period are you talking about one to three miles 13 or Dr. Day to ask him anything about the density
14 thick of -- 14 of cypress when he was a child?
15 A. Right before MRGO cut the La Loutre 15 A. No.
16 Ridge. 16 Q. And when Paul Kemp asked you to
17 Q. And how do you know or do you have 17 provide information about stem density of
18 an opinion on what the density of those one to 18 cypress, did you do any research beyond looking
19 three miles of cypress were? 19 at the articles that you cited from Connor and
20 A. Pretty dense, according to the 20 Megonigal and your Maurepas statistics?
21 photographs. 21 A. No. That's all we needed.
22 Q. So, your estimate -- 22 Q. All you needed -- why did you decide
23 A. Also, for instance, the deposition 23 that was all you needed?
24 of Junior Rodriguez, it states in there that it 24 A. That's what they asked me to do.
25 was very easy to get lost in that swamp. So, we 25 Q. To provide information about Lake
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1 Maurepas? 1 Q. So, when you say the research by
2 A. To provide them with stem density 2 Mazda and Brinkman was based on a narrow band of
3 information that would be reflective of a healthy 3 150 meters, what was the -- that's only one
4 swamp in the southeast as well as nonhealthy 4 dimension. Do you know the other dimensions
5 swamps in the southeast. 5 of --
6 Q. And why did you think that the 6 A. I'm talking about the width. So,
7 information from Lake Maurepas would be 7 when the tsunami hit, also, Danielson, I believe,
8 comparable to the predicting what was present 8 in 2005, before Katrina, put a paper out in
9 along the MRGO in the 1950s? 9 "Science" that documented that villages that had
10 A. We wanted to -- again, a lot of this 10 narrow bands of mangroves in front of them did
11 was for sensitivity analysis and like -- our 11 not get knocked over, whereas, villages that had
12 degraded swamp in the Maurepas looks nothing like 12 cut down that forested wetland were demolished,
13 the scattered swamp that was in the Central 13 and that's what Paul Kemp found in Team
14 Wetlands Unit. Again, those were very dense 14 Louisiana, that levees that were fronted by trees
15 stands of patches of swamp interspersed with very 15 and even wetland vegetation remained largely
16 tall marsh, whereas, Figure 4 in our expert 16 intact, and those contiguous without trees and
17 report, this is more what our system looks like. 17 wetlands got blown to pieces.
18 Q. You referenced research by Brinkman 18 Q. So, the Mazda and Brinkman research
19 and Mazda regarding the impact of cypress on the 19 was based on a tsunami rather than a hurricane?
20 waves associated with the storm surge. Do you 20 A. High winds. You know, surge.
21 have any -- any knowledge of whether those -- the 21 Q. But it was based on a tsunami, not a
22 studies -- whether those studies were based on 22 hurricane?
23 the type of cypress clumps that you describe as 23 A. I'm not sure.
24 having been present in the vicinity of the MRGO 24 Q. Okay. Did you read the research
25 as opposed to a continuous forest? 25 from Mazda and Brinkman in preparing the
Page 155 Page 157
1 A. Well, this part of the forest -- the 1 information that you gave to Paul Kemp and Ivor
2 vast majority of the forest in the Central 2 van Heerden?
3 Wetlands Unit before it was killed by MRGO is the 3 A. Yes, but it's been quite some time.
4 dense swamp. All right. The scattered swamp's a 4 Q. When did you provide this
5 very small portion. 5 information to Paul Kemp and Ivor van Heerden?
6 Q. Okay. But do you know what type of 6 A. Probably over a year ago.
7 swamp the Mazda and Brinkman research was based 7 Q. So, in your opinion, research
8 on? 8 regarding a tsunami's impact on mangrove trees
9 A. Those were mangroves. 9 and the mangrove -- and flooding that may result
10 Q. And -- 10 is comparable to the impact of a hurricane on
11 A. Forested wetland. The same, 11 cypress trees?
12 nevertheless. Basically, three dimensional 12 MR. MEUNIER:
13 structure that doesn't fall over is going to 13 Objection to the form of the
14 knock the wave. It could be telephone poles. 14 question.
15 Q. Do you know, though, whether their 15 A. Three dimensional structures are
16 research was based on a continuous forest versus 16 going to break waves the same way. A wave is a
17 clumps of trees? 17 wave. We could take it to a beach with a steep
18 A. It was based on a very narrow band 18 slope versus a narrow slope. The narrow slope
19 of forest, 100 to 150 meters. 19 waves are going to be very small when it gets to
20 THE VIDEOGRAPHER: 20 shore. The steep slope wave, like California, is
21 Off the record. Change the 21 going to have a big wave. It doesn't hit bottom
22 tape. 22 friction. We know how waves work. It's nothing
23 (Whereupon, a discussion was 23 special about the specie of tree. You break a
24 held off the record.) 24 wave and it's broken.
25 EXAMINATION BY MS. MILLER: 25 EXAMINATION BY MS. MILLER:
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1 Q. So, any vegetation would have the 1 Q. So, your focus on this issue really
2 same impact, is that what you're saying? 2 has come with your involvement in this
3 A. No. Grass would not do what a 3 litigation; is that right?
4 swamp -- a cypress swamp would do, of course. 4 A. Yes.
5 Then, of course, if you allow the MRGO to widen 5 Q. And did you read the Team Louisiana
6 from 650 to 1,500 feet, you then can regenerate 6 report?
7 waves. 7 A. I did. Not all of it. What I
8 Q. Have you studied this issue? 8 considered to be appropriate for our study.
9 A. I've talked to the team about it. 9 Q. So, you read that for purposes of
10 Q. Okay. But you yourself have not 10 preparing your expert report?
11 done any modeling of the waves generated by 11 A. Yes.
12 Hurricane Katrina; is that right? 12 Q. Had you -- is that also why you read
13 A. No, but any wetlands scientist 13 the Mazda and Brinkman studies?
14 understands fetch and we all work in water bodies 14 A. No. I had read those previously.
15 when wind comes up and waves are generated. We 15 Q. Do you have yourself -- you
16 definitely have a feel for how waves are 16 mentioned that you are not familiar with the
17 generated. 17 Manning coefficient and the Collins coefficient.
18 Q. Would you agree that the waves 18 Have you -- what is your familiarity -- well,
19 generated when you're working in the field by 19 have you yourself done any storm surge modeling?
20 winds are quite different from the waves 20 A. No.
21 generated by a hurricane the strength of Katrina? 21 Q. And you're not a hydrologist,
22 A. Not with regard to what would cause 22 correct?
23 them to go away. 23 A. No. But Dr. Day mentioned yesterday
24 Q. So, you're saying that as a very 24 a wetlands scientist has to know a considerable
25 general principle, the physics of a wave are 25 amount of hydrology in order to do any work.
Page 159 Page 161
1 comparable, whether it's wave from a boat or a 1 Q. But in terms of predicting given a
2 wave from a hurricane? 2 certain set of winds and parameters of a
3 A. I'm saying that cypress swamps are 3 hurricane, predicting a storm surge, that's not
4 extremely effective, as are mangroves, at 4 within your area of expertise?
5 knocking the waves off of a storm surge. 5 A. Absolutely not.
6 Q. And what -- are there any studies 6 Q. And, I guess, predicting as well as
7 beyond those done by Mazda and Brinkman and what 7 hindcasting, the same answer would apply?
8 you mentioned from Paul Kemp and the Team 8 A. Yes.
9 Louisiana group that leads you to conclude that? 9 Q. So, you indicated that the growth
10 A. The work that was done during 10 rate of trees, in your opinion, is not relevant
11 this -- preparing this case is probably the best 11 to estimating the stem density of a particular
12 in the world so far. 12 swamp; is that right?
13 Q. And other than that, prior to this 13 MR. MEUNIER:
14 litigation, you had studied this issue? 14 Objection to the form.
15 A. People are only -- post-Katrina is 15 A. Could you be more specific? I don't
16 when this whole topic got very hot, you know, 16 really know what you're asking.
17 trying to determine the differences between 17 EXAMINATION BY MS. MILLER:
18 different vegetation types with regard to their 18 Q. Well, I asked you whether you did
19 ability to reduce storm surge and waves on top of 19 any research on determining the growth rate and
20 storm surge. So, this is a very new field in 20 change of the growth rate of cypress trees over
21 general. I mean, of course, the physics goes way 21 time in the Lake Maurepas or other areas in the
22 back, centuries, on why waves break and what 22 Pontchartrain Basin when you were preparing your
23 makes them break and what sort of baffling system 23 information on stem density.
24 causes them to go away. How do you attenuate a 24 A. So, I guess the reason my answer was
25 wave, that's been known for a very long time. 25 the way it was is that when a storm surge hits a
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1 stand of trees, it doesn't care how fast they're 1 A. Well, if I brought it back to the
2 growing. 2 Central Wetlands, though, I think that habitat is
3 Q. But wouldn't it make sense if you're 3 unique because of the La Loutre Ridge.
4 trying to estimate the size of trees or the 4 Q. Well, say you were to pretend that
5 health of a particular swamp at a particular 5 the MRGO never was built. Then, your statement
6 point in time that you might be interested in 6 would apply to the Central Wetlands Unit; is that
7 knowing the rate at which they're growing? 7 right?
8 A. I absolutely measure the rate at 8 A. I believe that that would be some of
9 which they're growing, and it's very important, 9 the healthiest swamp out there still. It would
10 but it's not important for that project right 10 be healthier than our potentially sustainable
11 there. That was just a deliverable. 11 swamp.
12 Q. So, you do that as part of your work 12 Q. In Lake Maurepas?
13 in the Maurepas Swamp? 13 A. Yes. And the reason I say that is
14 A. Correct. 14 figures like this, Figure 16 from our
15 Q. And through that research, you have 15 supplemental report, if you look at this little
16 determined that the growth rate has declined 16 man standing in that bateau and you look at the
17 since construction of the Mississippi River 17 size of the vegetation by looking at these
18 levees; is that right? 18 swatches here, that vegetation is probably 12
19 A. Well, I've only been working in the 19 feet tall. That guarantees this system is
20 system since the '90s. 20 experiencing sheet flow. Sheet flow is the
21 Q. And has the growth rate declined 21 healthiest hydrology, unlike this system right
22 since the '90s? 22 here. Look at the vegetation in Figure 4, very
23 A. In some areas, it has. 23 sparse, clearly not robust. Penfound and
24 Q. Have you done research to evaluate 24 Hathaway and Claire Brown both state that the
25 the growth rate prior to that? 25 most common species associated with these dense
Page 163 Page 165
1 A. No, I haven't. I mean, I've read 1 stands of swamp was giant cut grass, Zizaniopsis
2 all the literature on cypress swamps, so, I mean, 2 miliacea. That is a throughput species. That is
3 whatever has been done, I have probably read. 3 a species that is very indicative of extremely
4 Q. So, that's the basis for your 4 healthy marsh.
5 understanding that they -- the growth rate has 5 Q. But the photograph that you're
6 declined since construction of the river levees; 6 showing me now, which looks like it's Number 15
7 is that right? 7 of your supplemental report, that does not show
8 MR. MEUNIER: 8 dense stands of cypress trees; is that correct?
9 Objection to the form 9 A. Oh, I think it does. Yes, there's
10 without specifying where. 10 some dense stands of cypress. Certainly --
11 A. The processes have been -- the 11 certainly, along all these bayous.
12 processes that make swamps and marshes function 12 Q. You said you brought --
13 in a healthy way have been removed and, so, you 13 A. Dense stands of cypress right here.
14 see a very slow, steady decline in ecosystem 14 Q. You said you brought copies of these
15 function in entire coastal Louisiana. I'm 15 that you could mark on.
16 talking about decades and decades. 16 A. Yeah. They were scrambled. I still
17 EXAMINATION BY MS. MILLER: 17 haven't finished. Then, I want to put them back
18 Q. And with respect to Mr. Meunier's 18 into order. So, if we could put that off --
19 question about the time or the location -- I'm 19 Q. If you could find that one --
20 sorry -- 20 A. They are completely random right
21 MR. MEUNIER: 21 now. Actually, 16 is on -- here you go.
22 Place. 22 MR. MEUNIER:
23 EXAMINATION BY MS. MILLER: 23 We're referring to it by
24 Q. -- that applies, like you said, to 24 which number? The number is on
25 the entire coast of Louisiana; is that correct? 25 here.
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1 THE WITNESS: 1 area, the Central Wetlands Unit, was classified
2 This is 16 in our 2 as cypress-tupelo, that's how we infer that those
3 supplemental. 3 probably -- they're trees, so, they're probably
4 EXAMINATION BY MS. MILLER: 4 cypress trees. Then along some of the raised --
5 Q. So, this particular one that you 5 when you see they have a round top, they're
6 originally attached to your report seems to be 6 probably live oaks.
7 different from the one that you're looking at 7 Q. But like you had described before,
8 now. 8 the classifications usually go with maybe what
9 A. He couldn't get the xerox -- he 9 the majority of the vegetation is rather than
10 couldn't get the overlay to come out. It's the 10 representing 100 percent of the particular type
11 same -- Ralph put these together last night, and 11 of vegetation?
12 that's the only one that has an overlay on it. 12 A. Correct, or they cross it. So, you
13 Q. Okay. So, we can use -- I'm going 13 could call this a fresh marsh/cypress swamp, you
14 to mark this exhibit for purposes of this 14 know. It depends on the cartographer.
15 deposition Shaffer 4. 15 Q. So, this particular picture, would
16 (Whereupon, Shaffer Exhibit 16 you classify what we see here as a cypress swamp?
17 Number 4 was marked for 17 A. Would I classify this -- I would
18 identification.) 18 classify this as a fresh marsh.
19 MR. MEUNIER: 19 Q. Okay. And like you said about the
20 Give me the Bates number on 20 scale, that also makes it difficult to really
21 there, Kara. 21 judge the -- the height of some of these -- well,
22 MS. MILLER: 22 really, any of the vegetation; is that right?
23 NED-2 -- well, I don't know 23 A. Well, not -- that's why I pulled
24 that your copy has a Bates number. 24 this one out. There's a small bateau right there
25 Oh, that's it. NED-275 -- 25 with someone standing up in it.
Page 167 Page 169
1 MR. MEUNIER: 1 Q. How can you tell that that's a
2 Ending in 095? 2 person?
3 MS. MILLER: 3 A. It sure looks like a person to me.
4 Yes. 4 Q. All right.
5 EXAMINATION BY MS. MILLER: 5 A. I mean, we probably have to blow it
6 Q. Okay. So, if you could mark this -- 6 up, but that's --
7 this might work well, this dark pen, where you 7 Q. Okay. So, that's the type of thing
8 see cypress in the photograph. 8 that you use to judge the --
9 A. (Complying.) Don't think that is. 9 A. Yeah. There are many other
10 It looks more like a burn. This in the 10 photographs here that you clearly can see people
11 background was probably swamp. This looks like 11 in that are clearer than this one. But this one,
12 swamp. Well, these are certainly trees. They 12 I brought that out because of the shadows in the
13 look a little smaller, but -- 13 fresh marsh that have been cut out of it. It
14 Q. So, that last mark you made, you 14 clearly indicates that this is 12 feet tall or
15 think, may not be cypress? 15 more.
16 A. That could be very, very tall reed. 16 Q. But you agree there's some
17 I don't know. Without a scale on here, it's very 17 uncertainty in judging any of these things given
18 difficult to objectively say what -- like, you 18 that we don't know the scale?
19 know, ask me it if those are cypress trees, and I 19 A. Yes. But when you look at the group
20 will say there's no way of telling. There's 20 of photographs together, it's pretty easy to tell
21 probably a mixed species of trees in here. Some 21 that this is not Spartina alterniflora marsh,
22 are taller than others. So, there's probably 22 this is Zizaniopsis miliacea and Spartina
23 mid-story in there. But I don't think any human 23 cynoseroides. Those were the ones that Claire
24 being could tell you what species of trees those 24 Brown and Penfound and Hathaway both
25 are. But knowing that this swamp, that this 25 characterized for this area, and that's what
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1 exactly what that looks like. 1 Q. Well, I think I can represent to you
2 Q. Can I see where you made those 2 that it is, but I don't -- I don't know that I
3 marks? 3 have a diagram of the Forty Arpent levee right --
4 A. There's far more extensive cypress 4 A. All I'm saying is the water budget
5 in many of these other photographs. 5 that we showed for this area and, actually, for
6 Q. Okay. Well, maybe we'll get to 6 the northwestern Pontchartrain in general,
7 those in a little bit and on a break we can 7 there's a surplus of water most of the year and,
8 organize them. But you, in discussing this one 8 so, that water has to go somewhere. And,
9 that we've now marked as Exhibit 4, you indicate 9 ideally, when it hits a wetland, it sheet flows
10 that from what you see of the vegetation, there 10 off and heads south.
11 was -- I think, maybe you used the word 11 Q. Does the fact that water is pumped
12 "healthy," I'm not sure, but a good sheet flow of 12 into particular locations as opposed to running
13 water in the area; is that right? 13 consistently over the entire area, does that
14 A. Yes. 14 impact the sheet flow?
15 Q. And do you know where that water 15 A. It probably -- well, it's going --
16 comes from? 16 water finds a level surface. So, the water
17 A. I would think that probably St. 17 eventually -- right where it falls out, of
18 Bernard has, I think, seven pumps for pumping 18 course, it's going to be a higher elevation, but
19 water out into those wetlands. I think those are 19 it's going to seek an even elevation fairly
20 very old. I think the drainage off of St. 20 quickly.
21 Bernard has always gone into the Central 21 Q. And would construction of the Lake
22 Wetlands. I think that rainwater, of course, and 22 Pontchartrain -- you're familiar with the Lake
23 then parts of New Orleans water probably gets in 23 Pontchartrain and Vicinity Hurricane Protection
24 there, water from the GIWW. 24 Plan, right?
25 Q. And how would that sheet flow have 25 A. Yes.
Page 171 Page 173
1 been impacted by a construction of the hurricane 1 Q. And the location of the levees
2 protection levees? 2 constructed pursuant to that?
3 A. It depends on what they did with 3 A. Yes.
4 regard to making sure that water could get 4 Q. So, you're familiar with the levee
5 through those. I mean, they have to get the 5 that essentially enclosed a large portion of the
6 water off of the streets. They've got to get the 6 Central Wetlands area; is that right?
7 water out of the neighborhoods. So, it 7 A. Yes.
8 probably -- it may not have changed. 8 Q. How would construction of that levee
9 Q. And I guess I should be more 9 have impacted the sheet flow of the Central
10 specific. So, you're referencing construction of 10 Wetlands Unit?
11 the Forty Arpent levee; is that right? 11 A. Well, I'm sure that it would become
12 A. One. That's one, yes. 12 more impounded. As you construct levees, things
13 Q. So, that would be the one that might 13 tend to become more impounded. You basically
14 inhibit drainage from the neighborhoods; is that 14 create less places for water to flow.
15 right? 15 Q. And the impoundment often results
16 A. Yeah, but if anything was coming out 16 sinking or loss of the land that's enclosed; is
17 of east Orleans or Ninth Ward or something of 17 that right?
18 that nature -- 18 A. Over a very long period, yes. But
19 Q. Isn't the Ninth Ward also enclosed 19 not cypress swamp. They'll generally go down
20 by the Forty Arpent levee? 20 with impoundment. Cypress, once they're not
21 A. I don't know. We'd have to look at 21 seedlings any longer, they can handle -- cypress
22 a picture. 22 and tupelo can handle more flooding than any
23 Q. I'm sure we have a picture. 23 herbaceous plant.
24 A. Yeah, so, maybe that's where that 24 Q. I think both you and Dr. Day both
25 drainage goes. 25 testified that there's a limit to the flooding
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1 they can tolerate? 1 then Bayou LaBranche is a very large water body.
2 A. I know cypress in Lake Isabel in 2 It gets saltwater intrusion constantly. If the
3 north shore growing in eight feet of water. 3 La Loutre Ridge had not been cut, theoretically,
4 They're healthy. It's a heron rookery. So, they 4 the Central Wetlands could be still zero to three
5 get fertilized. 5 parts per thousand like the better parts of the
6 Q. So, they're artificially fertilized? 6 Maurepas Swamp.
7 A. They're fertilized by birds 7 Q. Isn't the salinity increasing
8 naturally. 8 coastwide in Louisiana?
9 Q. So, that's a unique environment, 9 A. Yes.
10 right? 10 Q. So, would that include Lake Borne?
11 A. Yeah. I'm just trying to get the 11 A. It would.
12 point across that these things -- the depth of 12 Q. So, that would be an avenue for more
13 water -- if that water has nutrients and is 13 saline water to enter the Central Wetlands area?
14 moving, cypress and tupelo are going to go 14 A. Yes, but it was already there.
15 decades and centuries before they go down due to 15 Q. Right. But it would, presumably,
16 impoundment, or -- or what would happen is their 16 continue to increase in salinity along with the
17 growth rates would slow down, but they would 17 remainder of the coast; is that right?
18 still subsist. 18 A. Well, actually, it's not that
19 Q. So, you would agree that an 19 salinity has increased. It's that human
20 impoundment is one of the stressors that impact 20 alterations in some areas have allowed more
21 the trees? 21 saltwater to get in. It's not that the salinity
22 A. Yes. 22 has increased over time. It's not. It has
23 Q. Okay. So, I think you were saying 23 stayed the same. So, I didn't put that quite
24 that -- were we to assume the MRGO had never been 24 right.
25 built, that, in your opinion, the swamp in that 25 Q. Okay.
Page 175 Page 177
1 area would have survived better than the swamp in 1 A. The reason that the salinity has
2 the remaining Pontchartrain Basin? 2 gotten higher in Lake Pontchartrain is due to
3 A. I think that it would be comparable 3 MRGO.
4 to what we call potentially sustainable in the 4 Q. And isn't one of the large human
5 Maurepas, and maybe a little bit better because 5 impacts -- well, you and Dr. Day have both
6 of the increased nonpoint source runoff and sheet 6 identified the construction of the Mississippi
7 flow. So, if you were to compare the -- the 7 River levees as one of the most important human
8 closest swamp to it is Bayou LaBranche, and that 8 impacts for the area as a whole, right?
9 has got big cuts into it to -- for saltwater 9 A. Yes.
10 intrusion. So, that's -- that's actually 10 Q. And that also had -- because it
11 probably considerably worse than the Central 11 reduces the freshwater available to these
12 Wetlands Unit would be, and it lost 9 percent of 12 wetlands in its entire vicinity, that has the
13 its swamp from '56 to '78, and 9 percent of its 13 resulting impact on the salinity; is that right?
14 swamp from '78 to, I think, 1999, whereas, the 14 A. It has a resulting impact -- no.
15 Central Wetlands lost everything except for that 15 That -- well, if the river -- I see what you're
16 little tiny piece around the Gore pumping 16 saying. So, let me just state this this way.
17 station. 17 The river doesn't continuously flow into
18 Q. So, you think 9 percent is a 18 wetlands. So, you generally get a crevasse
19 reasonable estimate -- well, is it your opinion 19 during high water in the spring and then it would
20 that the Central Wetlands -- the swamp in the 20 be the same the rest of the year. So, it's a --
21 Central Wetlands Unit would have declined by the 21 it's a periodic, pulsing paradigm that we're
22 same percentage as the LaBranche Wetlands? 22 talking about. So, yes, it would be fresh --
23 A. Less than LaBranche, because it's 23 fresher during the spring. And then not always.
24 more open to saltwater intrusion. It has human 24 These crevasses are -- you know, they shift
25 cut -- it has Walker Canal, Pipeline Canal and 25 around. So, some areas only see a crevasse maybe
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1 every 50 years. 1 It's called marsh management. We have
2 Q. Well, what other human activity 2 demonstrated conclusively that it's not a good
3 impacts the Central Wetlands Unit besides the 3 idea.
4 MRGO? 4 Q. It's not effectively managing the
5 A. Well, nothing comes close. I mean, 5 marsh by putting weirs in?
6 second place is, like -- it's almost not even 6 A. It's a very good way to lose marsh.
7 measurable compared to the MRGO. 7 Q. What is a weir?
8 Q. But if you take out the MRGO, 8 A. It's a structure designed to alter
9 pretend -- go back to 1950, what -- well, I mean, 9 the flow through a channel.
10 I guess we can compare -- you say the LaBranche 10 Q. And the intent is to improve the
11 Wetlands are comparable to the Central Wetlands 11 marsh, but they're not effective; is that right?
12 Unit. What are the human activities that have 12 A. The intent is often to shoot ducks.
13 impacted those wetlands in the last 50 years? 13 So, you bring the water up during the winter and
14 A. Canal dredging is a big one, 14 then you draw it down during the summer, is what
15 whereas, the Central Wetlands has very, very few 15 a typical marsh management plan would entail.
16 canals. 58 acres in '56 -- 56 acres in '56, 68 16 Q. Why would they call it marsh
17 acres in '78, MRGO, 4,000 acres. 17 management? Just because you're managing the
18 Q. Do you know how many acres excluding 18 marsh to make it suitable for duck hunting?
19 MRGO the Central Wetlands Unit has of canals 19 A. Somebody named it that a long time
20 today? 20 ago, and Dr. Day and I have written about reverse
21 A. Probably very similar. 21 marsh management.
22 Q. Have you measured that? 22 Q. So, the impacts to hydrology are
23 A. No. 23 canals, weirs. Are there other things?
24 Q. So, you can't necessarily say 24 A. I guess you could drain a wetland
25 without measuring it what the amount of canals 25 and plant corn there.
Page 179 Page 181
1 would have been between '78 and today? 1 Q. Is that done around here?
2 A. There's been no oil and gas 2 A. They used to try. Sugarcane. Many
3 development in that area and, so, it's unlike the 3 of Louisiana's wetlands were drained. Most of
4 Barataria, Terrebonne and other parts of 4 those were unsuccessful and turned into ponds.
5 Louisiana, 15,000 miles of oil and gas canals, 5 Q. Have any of those drainage events
6 and that 58 acres or 68 acres or 56 acres in the 6 happened in the Central Wetlands area?
7 Central Wetlands at the time is just -- there's 7 A. I believe there was some agriculture
8 been very little canal digging in there. 8 attempted in the Golden Triangle, and this is
9 Q. Uh-huh. And I guess we've already 9 pretty nebulous to me, but I think people had
10 talked about the -- the general stressors to the 10 tried agriculture. It may have been several
11 wetlands. I guess you identified a lot of things 11 centuries ago. At least a century ago.
12 that are not human activity. What -- so, other 12 Q. And are you -- are there any other
13 than canals and the river levees, what do you 13 areas that you're aware of it happening?
14 consider stressors to the wetlands caused by 14 A. What happening?
15 human activity? 15 Q. Sorry. The attempt to drain marsh
16 A. Direct development is -- means the 16 for agriculture in the vicinity of the Central
17 wetland is gone. So, that's a pretty big one. 17 Wetlands Unit?
18 Impoundments. 18 A. That has been abandoned for a very
19 Q. Okay. Impoundments. 19 long time.
20 A. Alterations in hydrology of any 20 Q. And are there other human activities
21 kind. 21 that impact the hydrology of the marsh or the
22 Q. What kind of alterations in 22 area? I'm sorry.
23 hydrology occur other than the canal 23 A. Storm water runoff could, but, very
24 construction? 24 often, it would improve the health of a system by
25 A. People put weirs all over the place. 25 pushing out saltwater and bringing in nutrients.
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1 Q. Would hurricane surge itself be an 1 A. Yes.
2 impact on the hydrology? 2 Q. Also for hunting, essentially?
3 A. For a very short period. 3 A. Yes.
4 Q. I guess that's not human activity, 4 Q. Are there other reasons for burning
5 but -- 5 the marsh?
6 A. Yeah. 6 A. That's the main one.
7 Q. But it could have a lasting impact 7 Q. And, so, could burning the marsh
8 on the hydrology; is that -- 8 have a long-term impact on the hydrology of the
9 A. No. Well, I mean, if it blew out 9 area that's burned?
10 structures and knocked down -- it could roll up a 10 A. Probably not.
11 floating marsh or -- yeah, hurricanes can do a 11 Q. Does -- do burned areas always
12 lot. 12 regenerate?
13 Q. So, say, for example, it knocked 13 A. They generally regenerate very
14 down a lot of the, you know, hardwood trees, as 14 quickly. Yeah. You're not killing the roots
15 you described Katrina did. Would that then have 15 very often. You're just burning the vegetation
16 a -- I assume, a lasting impact on that 16 off the top.
17 particular area? 17 Q. So, where you thought there might be
18 A. Yes. Yes. Bottomland hardwoods 18 a burn reflected in the photograph at Exhibit 4,
19 fall down rather easily, though. 19 is it then your opinion that that would have had
20 Q. But any -- you know, if any set of 20 to have been a recent burn?
21 trees were knocked down during a hurricane, could 21 A. Yes.
22 that result in altered hydrology of the general 22 Q. Okay. You listed a number of human
23 area? 23 activities that can impact the hydrology of the
24 A. Sure. 24 marsh, although, you don't consider burning to be
25 Q. I guess we got a little bit away 25 part of that list.
Page 183 Page 185
1 from human activity. Can you think of other 1 A. Not a big part.
2 human activity that impacts the hydrology of the 2 Q. But maybe it has some small impact?
3 area? 3 A. Again, if you alter species
4 A. Not right now. 4 composition, you change the ecosystem.
5 Q. You mentioned in looking at that 5 Q. Okay. So, is there anything else
6 photograph something about burning of the marsh? 6 you can think of that we haven't discussed that
7 A. Oh, marsh burning, yeah. That's 7 impacts the ecosystem -- well, human activity
8 sometimes used to alter species composition. 8 that impacts the hydrology?
9 Q. And is that also for the purpose of 9 A. No.
10 hunting or other sporting activities? 10 Q. And other things then that may
11 A. That's why you would alter the 11 impact the ecosystem, I guess, are -- I guess
12 species composition. 12 climate changes would have an impact on that; is
13 Q. Can you describe how that works? 13 that right?
14 A. Generally, Spartina patens is burnt 14 A. Yes.
15 to select for Schoenoplexis Americanas or some 15 Q. And the other things that we
16 such species that puts on a big seed that a duck 16 discussed earlier, different animals?
17 would like to eat. 17 A. Correct.
18 Q. So, I think we talked about Spartina 18 Q. And the sea level rise, right?
19 patens earlier. 19 A. Climate change.
20 A. We did. 20 Q. Have you studied climate change in
21 Q. What was the colloquial name for 21 your work?
22 that? Was that the wire grass? 22 A. I teach about it.
23 A. Wire grass, brackish marsh species. 23 Q. You teach about its impacts on the
24 Q. Okay. So, burning, was that a -- 24 marsh?
25 does that continue to happen today? 25 A. In general.
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1 Q. Or wetlands and swamp, also? 1 A. All but two of them are.
2 A. People. 2 Q. Okay.
3 Q. And, so, all of these things that 3 A. And these are probably, too. I've
4 we've discussed impact the coast -- or the Lake 4 just been through here twice and I didn't find
5 Pontchartrain Basin, at least, as a whole, right? 5 either one of these.
6 A. Right. Coastal Louisiana. 6 Q. And which numbers are you missing --
7 Q. And the Central Wetlands Unit and 7 A. And maybe the first pass I went
8 area surrounding the MRGO, it impacts that area 8 through -- I'm, like, multitasking. There may
9 as well, right? 9 have been one that looked like this that I
10 A. Yes, but I -- I state again if the 10 mislabeled down there.
11 La Loutre Ridge were intact, that that would be 11 Q. I see. I'm sure they're the same.
12 one of our more unique wetlands in the 12 MR. MEUNIER:
13 Pontchartrain Basin. 13 Let's proceed. Give me the
14 Q. But it wouldn't be excluded from a 14 numbers of the two you can't match
15 lot of these human and natural activities? 15 and I'll be looking through my
16 A. No, but they would be slower. 16 stack.
17 MS. MILLER: 17 THE WITNESS:
18 Can we take a little break? 18 Excellent. 213 and 115.
19 Is that okay with everybody? 19 MR. MEUNIER:
20 MR. MEUNIER: 20 Okay.
21 Uh-huh. 21 THE WITNESS:
22 THE VIDEOGRAPHER: 22 I was doing pattern
23 Off the record. 23 recognition, when all I had to do
24 (Whereupon, a discussion was 24 was look at the number.
25 held off the record.) 25 EXAMINATION BY MS. MILLER:
Page 187 Page 189
1 THE VIDEOGRAPHER: 1 Q. Oh, well. Okay. This morning, when
2 On the record. 2 you were going through the documents that you
3 EXAMINATION BY MS. MILLER: 3 brought with you to this deposition, as far as I
4 Q. Dr. Shaffer, you just were trying to 4 recall, you listed about four things that --
5 organize your photographs and mentioned there are 5 well, two specifically that were related to stem
6 two you cannot identify. 6 density, and two others that you called
7 A. They might be in this stack, but the 7 statistics, which, I thought, might have had
8 last pass, I didn't match up either of these. 8 something to do with stem density. Were there
9 Q. Have you counted the same number of 9 additional papers in the things you brought today
10 large photographs as you have small photographs? 10 that related to stem density?
11 A. Yeah. I'm missing two. 11 A. No. And the ones that I was calling
12 Q. You're missing two large or small? 12 statistics were land loss rates.
13 A. It doesn't matter. I mean, these 13 Q. Okay.
14 all roughly demonstrate the same thing. There's 14 THE WITNESS:
15 nothing that, I think, we're not going to be able 15 But they don't have numbers
16 to find. 16 on them.
17 Q. Well, which is the small size of 17 MR. MEUNIER:
18 photographs is missing? 18 Bottom right-hand corner.
19 A. This is complete. 19 THE WITNESS:
20 Q. Okay. You're missing two? 20 I'm looking for the one --
21 A. Yeah. These came randomized and 21 in order to find them -- yeah. I
22 they appear to be a little different. 22 can find them eventually.
23 Q. Okay. So, the large photographs are 23 MR. MEUNIER:
24 not the exact same photographs that you and Dr. 24 All I'm saying, the Bates
25 Day included in your supplemental report? 25 numbers on the bottom right-hand
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1 corner match what you -- 1 you want.
2 THE WITNESS: 2 MS. MILLER:
3 I was hoping for a black 3 Sure. Good idea.
4 felt pen mark. 4 EXAMINATION BY MS. MILLER:
5 MS. MILLER: 5 Q. Okay. So, I'm marking as 5-A the
6 Okay. 6 one that is Figure 4.2 from the FitzGerald
7 EXAMINATION BY MS. MILLER: 7 report, 5-B is Figure 4.3, and 5-C is Figure 4.4,
8 Q. So, I wanted to go back to what we 8 and you indicated that those maps show the entire
9 were discussing a few minutes ago about the human 9 Central Wetlands Unit, but through those maps,
10 impacts on hydrology, and it seems there's one -- 10 are you able to evaluate whether there are
11 at least one that we forgot, and that's logging. 11 indications of logging in the Central Wetlands
12 Wouldn't you agree that goes into that category? 12 area?
13 A. Yes. And, remarkably, few logging 13 A. No. They've colored them. These
14 scars -- compared to the rest of coastal 14 are schematics.
15 Louisiana, the Central Wetlands has got fewer 15 Q. So, have you reviewed aerial imagery
16 logging scars than I've seen other than parts of 16 that allows you to view the entire Central
17 the Blind River, and what happens when that 17 Wetlands Unit to determine whether there are
18 occurs, is water is high and they're able to 18 logging scars?
19 float the trees out. One of my main research 19 A. Yes.
20 areas on the Manchac land bridge has a logging 20 Q. And what images are those that you
21 scar every 150 feet. And that's typical. 21 used to evaluate whether there are logging scars
22 There's just one little area in here, very, very 22 in the entirety of the Central Wetlands Unit?
23 isolated area, that actually has visible scars. 23 A. Duncan FitzGerald came down here for
24 We also saw that from the aerial photographs. 24 a field trip once, and he had concerns on how
25 Q. Have you reviewed aerial photographs 25 logging scars are actually formed and what that
Page 191 Page 193
1 of the entire Central Wetlands area? 1 whole logging damage occurs and, so, we got
2 A. Yes. 2 together for a brief meeting, and I think that's
3 Q. For this litigation? 3 when we looked at those, and he actually went out
4 A. Yes. 4 in the field.
5 Q. And were those the -- so, the 266 5 Q. And what was it you looked at with
6 photographs that you indicated you reviewed 6 him?
7 covered the entire Central Wetlands area? 7 A. The presence and absence of logging
8 A. Not positive about that, but, I 8 scars.
9 mean, there are shot at different altitudes. So, 9 Q. But in what? What -- was it a
10 some of them -- some of them have the entire 10 photograph?
11 Central -- something in FitzGerald, for instance, 11 A. He had some aerial photographs, I
12 is going to have the entire Central Wetlands 12 think, too, or reproductions.
13 area, like this map right here -- well, that's 13 Q. And do you know where he got those
14 not an entire -- but Figure 4.2, 4.3 and 4.4 show 14 photographs?
15 the entire Central Wetlands area. 15 A. I assume from the lawyers.
16 Q. Well, I happen to have this in front 16 Q. But were those different from the
17 of me. Maybe I'll go ahead and I guess I can put 17 266 photographs you referenced earlier today?
18 these all as one exhibit. I'll make them Number 18 A. Yes.
19 5. I can make them separate exhibits. 19 Q. And were they different from the
20 (Whereupon, Shaffer Exhibit 20 photographs you have attached to your report?
21 Number 5-A, Shaffer Exhibit Number 21 A. Yes.
22 5-B and Shaffer Exhibit Number 5-C 22 Q. And when was this meeting?
23 were marked for identification.) 23 A. A year ago, probably, roughly.
24 MR. MEUNIER: 24 Q. So, did the photographs that you
25 Call them 5-A, B and C, if 25 reviewed with Duncan FitzGerald form -- help you
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1 form your opinions in this litigation? 1 Wetlands? He was intrigued. It wasn't even a
2 A. Yeah, part of it. 2 part of the case. I mean, the flight was a part
3 Q. And you didn't attach those to your 3 of the case because he needed a background, but
4 report, though? 4 that was just an issue that had to be resolved.
5 A. We didn't really address -- in our 5 He wanted to be educated.
6 report, we didn't even address that there were 6 Q. And if the logging is not an issue
7 mostly no signs of logging scars in the Central 7 relevant to the case, why did you include a
8 Wetlands. We just talked about the logging 8 section on it in your expert report?
9 process and that it regenerated. I mean, that 9 A. Because it happened. We wanted to
10 was our main concern. Even when there are 10 put all of the historic things that happened in
11 logging scars all over the place, like the 11 there, and because the area regenerated, it's
12 Manchac, the cypress and tupelo regenerate, just 12 quite important. Not every area of Louisiana
13 not in the ditches. 13 that got logged did regenerate. This one did
14 Q. But you agree that logging creates 14 very well.
15 scars that permanently alter the hydrology of the 15 Q. And how do you know that it
16 area that was logged; is that right? 16 regenerated very well?
17 A. If the trees are drug out during low 17 A. Look at the 1930s, '40s, '50s, the
18 water. 18 aerials, depositions from old-timers. That swamp
19 Q. And logging scars that alter -- 19 regenerated.
20 logging -- the -- where trees have been drug out, 20 Q. Have you seen aerial photography
21 it creates scars that are visible in aerial 21 from times before the logging occurred?
22 photography; is that right? 22 A. Aerial photography before logging.
23 A. If they were drug out in low water. 23 Was there any? Talking about late 1800s here.
24 Q. So, the ones that are drug out in 24 MR. MEUNIER:
25 low water are the ones that result in the tracks 25 It would have been close.
Page 195 Page 197
1 that you can see in aerial photography; is that 1 A. Might have been martians. No. I
2 right? 2 don't think I have.
3 A. Correct. 3 EXAMINATION BY MS. MILLER:
4 Q. And it is your opinion that there 4 Q. So, you have not seen any images of
5 are few of these tracks visible in the Central 5 the swamp in the Central Wetlands Unit prior to
6 Wetlands Unit; is that right? 6 the occurrence of logging?
7 A. In a relative sense, compared to the 7 A. No.
8 rest of logged areas in coastal Louisiana, very 8 Q. Do you have any basis for comparing
9 few. 9 the swamp prior to logging to what the second-
10 Q. And the photographs that you 10 growth swamp looked like?
11 reviewed with Duncan FitzGerald are what you base 11 A. We -- well, no, we don't have -- we
12 that opinion on? 12 do not have a map of old-growth cypress by and
13 A. I now seem to remember that he shot 13 large in Louisiana with stumps and things where
14 them out of an airplane. So, while he was 14 you can piece together forensically what happened
15 down -- he went on a flight over the Central 15 where, but that's basically what we have.
16 Wetlands and actually either had somebody shoot 16 Q. So, relative to other parts of the
17 aerials or -- 17 coast, it's your opinion that there are fewer
18 Q. Are any of those photographs 18 logging scars in the Central Wetlands Unit, but
19 included in his expert report? 19 there are some there, right?
20 A. I don't remember. I don't think so. 20 A. Correct.
21 It turned out to be a nonissue. He's not from 21 Q. And they're visible in some of the
22 here, so, he didn't understand where these 22 photographs you've attached to your supplement --
23 geologic -- where these features came from. 23 supplemental report; is that right?
24 Where the hell did these lines come from that I 24 A. I haven't noticed any logging scars,
25 saw in the southwestern part of the Central 25 no.
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1 Q. Maybe we can take a look at some of 1 map; is that correct?
2 those in a little while. Could it be that there 2 A. That's correct, but, I mean, they're
3 are fewer logging scars in this area because 3 very detailed features of little fingers of
4 there were fewer trees to take out? 4 bayous, little trenasses and such. This is a
5 A. No. That's highly unlikely. 5 very detailed map. It's very carefully drawn.
6 This -- this second-growth forest -- I mean, all 6 Q. So, where there are logging tracks
7 of the old-growth forest was basically taken down 7 visible, you agree that that creates a permanent
8 in Louisiana and it either did or didn't 8 alteration of the hydrology of the area, right?
9 regenerate, and it was done with pull boats and 9 A. Yes, and, again, it looks like it's
10 it was done in different water conditions. And, 10 about a half a mile squared -- half a mile by a
11 so, if the water was high, then, that was 11 half a mile. So, if you take 28,000 and divide
12 desirable because it was easier to get the wood 12 it by 640, we could do what percentage of the
13 out. So, many times, they would wait for high 13 Central Wetlands that was.
14 water to get the wood out of the swamp, and in 14 Q. Okay. You're basing that on an
15 that case, the logs floated. 15 estimate from that one figure at Day Exhibit 5,
16 Q. But here, we can see that that 16 is it?
17 wasn't always the case, at least, in the Central 17 A. 7.
18 Wetlands Unit, because there are some scars from 18 Q. 7. Okay. Well, I don't need to ask
19 logging? 19 you any more about that right now, but I did
20 A. Right. Yeah. Clearly, this area in 20 wonder, what is -- how do you convert square
21 Day Exhibit 7 has got very characteristic logging 21 meters to hectagar or hectare?
22 scars. It's a very small part of the Central 22 A. A hectare is a hundred by a hundred
23 Wetlands. It's -- there's a scale here. So, we 23 meters. Ten thousand square meters.
24 can say how big it is, actually. It's about a 24 Q. So, 10,000 square meters. One
25 half mile by a half mile. 25 hectare is 10,000 square meters?
Page 199 Page 201
1 Q. Well, this is not a photograph, is 1 A. One hectare is 10,000 square meters.
2 it, Exhibit 7? 2 Q. Okay. I was trying to compare where
3 A. No. No. I mean, someone mapped 3 you get -- maybe I'm not understanding your
4 that on there. Those are presumably real. 4 numbers right, or the measurements, but in your
5 Q. But they may not have mapped every 5 report where you talk about ghost cypress on Page
6 logging track in the Central Wetlands Unit; is 6 52, you have a statement that a cypress-tupelo
7 that right? 7 forest with average density, and you give 1,000
8 A. FitzGerald did a very, very 8 stems per hectare. If you were to express that
9 careful -- FitzGerald, et al did a very, very 9 in stems per square meter, how does that convert?
10 careful mapping job, the best one that's ever 10 A. Basal area is totally different than
11 been done. 11 stems. Basal area is the amount of circles all
12 Q. Well, is it your opinion that he 12 put together. It's slicing through the tree and
13 created this map? 13 you add up the circles. You're adding up, like,
14 A. Let's see. Where did that come 14 what it would be if you just measured all the
15 from? 15 stumps after you cut. That's basal area.
16 Q. Or that he added the logging tracks 16 Q. Okay. But what does your 1,000
17 on there. 17 stems per hectare refer to on Page 52?
18 A. Let's see. Well, it suggests that 18 A. The number of trees on a hectare.
19 this map was created by them. There's no other 19 Q. So, if you were to convert that
20 cite on here. Well, we'd have to blow it up. I 20 to -- how does 1,000 stems per hectare equate to
21 know that it was built off of T-sheets. So, they 21 square meters?
22 created this map from T-sheets, USGS T-sheets. 22 A. A stem is a circle, right, this one
23 Q. But you have no -- I mean, you have 23 here.
24 no way to know for sure whether every logging run 24 Q. Right.
25 in the Central Wetlands Unit is included in that 25 A. Has pi(R) squared. R is about five
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1 here. So, 25 times three, this is about a 75 1 trees and medium-size trees, and you have a total
2 centimeter circle. That's the basal area. The 2 stem density and a canopy density. I was -- I
3 basal area of the circle you're looking at right 3 did what they asked me to do. So, for whatever
4 there is about 75 centimeters. 4 reason, that's what they wanted.
5 Q. Are you giving one statistic here on 5 Q. Okay. So, does that better reflect
6 Page 52, one thousand stems per hectare and basal 6 a -- a real forest if you use --
7 area greater than 40 meters squared per hectare? 7 A. If they're building it -- I'm just
8 A. Those are totally different 8 hypothesizing here, but if you're building the
9 measurements. They're the most commonly used -- 9 forest, you put the canopy trees in there. You
10 Q. What I was trying to figure out, how 10 got your big trees in there now. Okay. Now,
11 your -- you've got this table here at Exhibit 2 11 let's get the average stem density of the mid-
12 that's measured by 625-meter square plots; is 12 story trees, put those in. They'll be whatever,
13 that right? 13 smaller diameter it is.
14 A. Yes, but I converted those into 14 Q. I see. Okay. Okay. I didn't quite
15 hectares. 15 follow that, but I think you've explained it. I
16 Q. So, the top half of your table is in 16 mean, thank you for explaining it. I didn't
17 hectares? 17 understand as I was reading the graph.
18 A. Yeah. 18 Could we go back to that one -- this
19 Q. Okay. So, where you say ten -- 19 photograph that we marked as an exhibit, Exhibit
20 A. All you have to do is multiply one 20 4. You can see in that where the MRGO channel
21 of those sites by 16 and that would give you a 21 ultimately will be built; is that right?
22 hectare. They're 25 by 25 meters square. You 22 A. Correct.
23 multiply by 16, you got a hectare. 23 Q. And you're looking to the north in
24 Q. So, the numbers -- so, you're saying 24 that photograph; is that right?
25 stems -- so, are these numbers reflecting stems 25 A. Yes.
Page 203 Page 205
1 per hectare? 1 Q. And, so, to the right-hand side,
2 A. Yes. 2 Lake Borne is somewhere?
3 Q. Okay. So, where you say on Page 52, 3 A. Correct.
4 1,000 stems per hectare, that's what you consider 4 Q. And do you have an idea of what part
5 an average density cypress forest? 5 of -- I think it says on the photograph what part
6 A. Yes. 6 of the channel you're on, right?
7 Q. Okay. But your chart -- do you 7 A. Well, it bends right up top. So,
8 consider -- which one of these is an average 8 that's where it's hooking into the GIWW.
9 density? 9 Q. Okay. So, this is somewhere in the
10 A. There's -- there is it is right 10 northern part of --
11 there. One thousand, one hundred ten stems per 11 A. Yes.
12 hectare. 12 Q. -- what's been called Reach 2?
13 Q. Okay. So, you're using the total 13 A. Yes.
14 stems, not just the cypress? 14 Q. And on that map, you circled where
15 A. Yes, which is what you do. 15 you saw cypress trees -- I mean, on that
16 Q. Okay. So, any cypress forest is 16 photograph, you circled where you think the
17 going to have other trees in it; is that right? 17 cypress trees are visible. If you were to use a
18 A. No. As we said earlier, the more 18 photograph like this to estimate stem density,
19 salt that intrudes, the more it will turn into a 19 what would you come up with?
20 monoculture of cypress before it dies completely. 20 A. First, you'd need a scale to figure
21 Q. Okay. So, why did you separate out 21 out how big the stuff is, but you could not
22 the canopy stems from the total stems on your 22 estimate -- well, this -- it's a very dense
23 information that you gave to Paul Kemp? 23 canopy. Wherever there -- even though they're
24 A. Because if you were going to try to 24 patchy, whenever you see the cypress, it's a very
25 build an average forest for a model, you want big 25 dense forest. You can't see holes through the
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1 forest. It's a complete canopy cover. It's 100 1 that. You run perpendicular down the thing and
2 percent canopy cover. 2 you come up with an estimate. That's what we
3 Q. Okay. So, in the sections where 3 did.
4 there is cypress, it's dense, but the cypress 4 Q. So, on Page 16 then, where on the
5 does not dominate the photo, as we discussed 5 map is your estimate of ten kilometers?
6 earlier, right? 6 A. It's an average. That's what it
7 A. It dominates some of the photos, not 7 says. It's an average of all -- it's highly
8 this one. 8 variable. Sometimes it's way more than ten
9 Q. Okay. This one, you had described 9 kilometers and sometimes way less.
10 as being dominated by fresh marsh? 10 Q. Okay. So, then, to understand how
11 A. Very tall, very healthy, very dense 11 you came up with your average, at what point --
12 fresh marsh. 12 A. It's the same average that Team
13 Q. Okay. You -- on Page 16 and 17 of 13 Louisiana got.
14 your report, you talk about swamps for hurricane 14 Q. Okay. But where did you take your
15 protection, and you have already described the 15 measurements from, the shore of Lake Borne?
16 measuring the impacts of swamps on hurricanes is 16 A. Yeah. Yes.
17 not something you do as part of your expertise; 17 Q. And how far to the north and south
18 is that right? 18 of the shore of Lake Borne did you start and
19 A. No, but we have some fine modelers 19 finish?
20 on our team that were able to put the landscape 20 A. Where the Central Wetlands start and
21 back together from pre-MRGO and demonstrated that 21 finish.
22 flooding probably would have been reduced by 80 22 Q. So, you started where the GIWW
23 percent had MRGO not been built. 23 hits -- it looks like the GIWW hits Lake Borne;
24 Q. Okay. But that's not your role in 24 is that right? Or I don't know if that's --
25 the litigation, right? 25 yeah. Is that the GIWW?
Page 207 Page 209
1 A. No. But these are some of the 1 A. Yes, that's right.
2 world's finest experts. 2 Q. So, you started at that point?
3 Q. So, where you say on Page 16 and 3 A. Yeah. So, that measurement would
4 carrying over to 17, "Prior to the construction 4 have involved from that point all the way over to
5 of the MRGO, an average of about ten kilometers 5 what we call Area 1 --
6 of the wetlands lied between Orleans and St. 6 Q. Which is -- you're pointing to --
7 Bernard Parishes and Lake Borne," do you think 7 A. -- which is west of Paris Road.
8 you could show on one -- is that a good map? 8 Q. Okay. You're pointing to what looks
9 A. It's got a scale. 9 like where the IHNC is located; is that right?
10 Q. You've pulled out Figure 4.2 from 10 A. Yeah. I'm just looking at the
11 the FitzGerald report which we've marked as 5-A. 11 black outline, basically.
12 Can you demonstrate on this map where you are 12 Q. Okay. Then, you went down along the
13 describing is the ten kilometers of wetlands? 13 coast of Lake Borne.
14 A. From the edge of Lake Borne all the 14 A. Just ran the ruler down, say, 50
15 way to the Forty Arpent. 15 times.
16 Q. But at what point on the Forty 16 Q. And how far south did you go taking
17 Arpent is the ten kilometer measurement? 17 your measurements?
18 Obviously, it looks to me, like, on the closest 18 A. Looked like Hopedale-ish.
19 part to the GIWW, there's a much greater 19 Q. Okay. So, ten kilometers, on
20 distance. 20 average, but, basically, you're just measuring
21 A. Right. So, what you do is you take 21 the land between Lake Borne and the Forty Arpent
22 a ruler out and you do an average. You'd run 22 Canal; is that right?
23 here and say, all right, how many millimeters is 23 A. Exactly. Unfortunately, most of the
24 that, how many millimeters is that, how many 24 storm reduction statistics that are out there
25 millimeters is that, how many millimeters is 25 have been on marsh, not swamp. So, this is a
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1 really conservative estimate. 1 A. Katrina, I mean. Sorry. Whereas,
2 Q. Okay. So, what portion of the area 2 Rita -- in other words, they don't have -- at the
3 shown in Figure 4.2 do you think -- why do you 3 time, they did not have wetlands in the ADCIRC
4 think that that's a -- I don't understand exactly 4 model. There was nothing in there to model
5 what you're saying. What time frame are you 5 wetlands. So, it was as if they were just open
6 talking about? 6 water.
7 A. The best measurement we have of 7 Q. Okay. So, do you know whether they
8 storm surge reduction is from Rita, strandlines 8 had the winds put in correctly for Rita?
9 from Rita, and we know that one foot of storm 9 A. Yes. Yeah. The wind -- all that
10 surge is taken down every 1.4 miles. 10 stuff. They measured everything, and --
11 Q. And that's from ones -- 11 Q. And do you know -- I mean, have you
12 A. And that's with the storm going over 12 evaluated the inputs to all of these models?
13 a marsh, and most of that marsh is Spartina 13 A. Not at all, but I know the team
14 marsh, low growth form, nothing like what we have 14 members. You know, we're talking about Ivor van
15 in the Central Wetlands, with nine to 12 meter 15 Heerden and Paul Kemp and Hassan Mashriqui.
16 marsh, so -- 16 Q. So, you've learned the results of
17 Q. Do you know anything about that 17 this modeling from speaking Paul Kemp, Ivor van
18 study in terms of the direction of the winds at 18 Heerden and Hassan Mashriqui?
19 the place of measuring? 19 A. And from reading what they put in
20 A. You just go from the coast inward. 20 the literature.
21 So -- let me back up a little bit and say one 21 Q. What literature have they published
22 thing first, and that is the modelers at LSU's 22 about that?
23 Hurricane Center modeled Katrina perfectly and 23 A. I don't know if it's out yet, but I
24 they modeled Rita miserably, and the difference 24 believe Hassan Mashriqui has an et al out there
25 between the two is that Rita went over 34 25 with Dr. Day out there; Team Louisiana, of
Page 211 Page 213
1 kilometers of wetlands before it hit people, and 1 course.
2 they missed the storm surge by four feet. They 2 Q. There were differences between the
3 thought it was going to be four feet higher than 3 storms, Hurricane Katrina and Rita, right?
4 it was, and that's what the wetlands did to it. 4 A. Of course.
5 You can do that by looking at strandlines. 5 Q. Okay. So, where you say on Page 16:
6 That's where the watermarks are on buildings, 6 "Because a considerable portion of these wetlands
7 anything, trees, and these guys had stage gauges 7 was baldcypress-water tupelo swamp, the reduction
8 out there, too, the USGS. 8 of storm surge likely would have been much
9 Q. The models that you just described 9 greater," you're talking about prior to
10 by LSU of Katrina and Rita, were those things 10 construction of the MRGO, right?
11 done before the storms? 11 A. Yes.
12 A. They were done before, during and 12 Q. So, you're saying that before
13 after. So, you can -- with the ADCIRC model, you 13 construction of the MRGO, had Katrina happened,
14 could actually back Katrina back up into the 14 you think the storm surge would have been
15 ocean and throw it in someplace else, like throw 15 reduced; is that right?
16 it into Hammond and see what happens. It allows 16 A. Yes.
17 you to do predictions of different sort of 17 Q. And by "a considerable portion of
18 reconstructions. 18 the wetlands," you largely mean wetlands to the
19 Q. When you say that their modeling was 19 west of the MRGO; is that right?
20 off, do you mean all of their modeling? 20 A. Yes.
21 A. No. Like I say, they nailed Rita 21 Q. Or do you entirely refer to wetlands
22 because Rita didn't travel over very many 22 west of the MRGO as --
23 wetlands. Wetlands that it did travel over were 23 A. No. The swamp. The swamp is what
24 very, very weak. 24 you're asking me about.
25 Q. You mean Katrina? 25 Q. Right.
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1 A. The 10,200 acres of swamp is, yes, 1 A. That was actually Dr. Mack.
2 west of the MRGO -- west and southwest of the 2 Q. Okay.
3 MRGO. 3 A. She was doing the resource
4 Q. Okay. But the measurement of what 4 collection down there.
5 you say on Page 16-17 about how, you know, the 5 Q. And do you know who she spoke with
6 reduction of storm surge likely would have been 6 to get that information?
7 much greater, you yourself haven't actually 7 A. She could tell you.
8 measured that, right? 8 Q. But you don't know?
9 A. Anybody with any education in 9 A. No.
10 wetland science or just in forest ecology even 10 Q. And all of these stations listed
11 would realize the baffling and attenuation effect 11 here, the earliest one giving the date
12 of a very thick forest. 12 installed -- two are unknown, but the earliest
13 Q. Okay. But Pages 16 to 20 are 13 listed is the 1950s and mid-1950s. Are you aware
14 stating general principles that you understand 14 whether there were pump stations built prior to
15 from the literature as opposed to specific 15 the '50s?
16 results of a particular model; is that right? 16 A. I am not.
17 A. Well, the other storm surge 17 Q. And, again, we discussed this, I
18 statistics, like the 9.45 centimeters per 18 think, a little bit, but on Page 42, you're
19 kilometer, that was measured by Ken Krauss, which 19 listing a number of factors -- well, it begins on
20 is also considerably higher than the original 20 Page 41, factors that indicate that the rapid
21 measurements by the Corps in their 1963 study of 21 die-off of baldcypress-water tupelo swamps was
22 the hurricanes that hit during, I think, 1902 to 22 the result of the MRGO. These things listed here
23 1947. 23 in four bullet points are the basis for your
24 Q. But both statistics you've just 24 conclusion that the die-off of swamp related --
25 referenced are general principles as opposed to 25 was the result of the MRGO; is that right?
Page 215 Page 217
1 specific model of Katrina; is that right? 1 A. Yes.
2 A. Yeah, and they're also conservative 2 Q. So, it's the salinity tolerance,
3 because the wetlands are primarily marshes that 3 change in salinity, the habitat mapping, and you
4 they're dealing with. 4 reference a number of personal observations by
5 Q. But in terms of modeling the impact 5 residents of St. Bernard Parish. Who -- what are
6 of swamps or other wetlands on Hurricane 6 those persons -- who are those persons?
7 Katrina's storm surge, that is outside your area 7 A. Junior Rodriguez and the gentleman
8 of expertise and your role in this litigation; is 8 that you spoke about with Dr. Day yesterday that
9 that right? 9 starts with an L.
10 A. Correct. 10 Q. Gatian Livaudais?
11 Q. On Page 28 -- or, I guess, that 11 A. Yes. Those are among others. I
12 starts before that, but Page 26 is where you 12 don't know how many old-timers were actually
13 begin your discussion in your report of the water 13 deposed.
14 budget. I thought Dr. Day told me yesterday that 14 Q. Sews, these are based on depositions
15 he took the lead on that section; is that right? 15 that you read?
16 A. That's correct. 16 A. Yes.
17 Q. But do you -- do you know then -- on 17 Q. How -- whose -- are those the only
18 Page 29, there's a listing of station numbers of 18 two depositions that you read?
19 St. Bernard drainage pump stations, discharging 19 A. I believe they were. It's been a
20 to the Central Wetlands Unit, and their capacity 20 very long time. Yeah. I think there were just
21 and year installed and the reference there is a 21 those two that I was given. I don't -- they
22 personal communication with the Lake Borne Basin 22 might have done ten. I have no idea.
23 Levee District -- do you know who it was that 23 Q. Okay. But you don't cite
24 communicated that information to -- well, was 24 specifically any depositions here, but that's
25 that communication with you or with Dr. Day? 25 what you recall --
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1 A. No. 1 a lot of good work.
2 Q. -- being the source of this 2 MR. MEUNIER:
3 information, was deposition testimony; is that 3 Object to the form of the
4 right? 4 question.
5 A. Not just depositions. Any 5 A. Yeah. I think he's quite reliable.
6 communication with people that grew up out there, 6 EXAMINATION BY MS. MILLER:
7 had camps out there. I mean, it's a plethora of 7 Q. Have you had interaction with him
8 different verbal communications. 8 beyond attendance at public meetings?
9 Q. And who have you had those verbal 9 A. No.
10 communications with? 10 Q. Where you discuss land loss in your
11 A. I have not had any of those verbal 11 report and -- well, I guess, to clarify, we have
12 communications. I don't know these people other 12 spoken all day, basically, about loss of swamp.
13 than I go to meetings a lot with -- I, at least, 13 By saying loss, you mean that the swamp is no
14 used to with Junior. 14 longer there, but that doesn't necessarily mean
15 Q. Okay. So, you think that Dr. Day 15 that there's no -- that it's water as opposed to
16 may have had more discussions? 16 land that replaced it; is that right?
17 A. I think -- we had several resource- 17 A. If you look at Figure 7 on Page 40,
18 collecting people as well as the lawyers were 18 I think you would agree that about half of the
19 getting in touch with these people. It was a 19 Central Wetland Unit was open water.
20 broad search. 20 Q. Are you -- and what -- what -- what
21 Q. Is there anywhere in your report 21 are you basing that on?
22 that you all list the individuals with whom 22 A. The dark color -- well, I've been
23 you've collectively spoke to gather information 23 down there several -- many times, and it's open
24 in the preparation of your report? 24 water.
25 A. No. 25 Q. Okay. So, the --
Page 219 Page 221
1 Q. Is that a list that someone would be 1 A. So, for instance, the area of the
2 able to come up with and provide? 2 west -- west of Paris Road, that was very dense
3 A. We would have to get together with 3 cypress and it's now all open water. It's about
4 the lawyers and see how all of those data were 4 a meter deep of open water. We did pathemetry in
5 collected. I have no idea. 5 there, so, that's a very solid statement.
6 Q. Okay. So, was it primarily then 6 Q. Okay. So -- but some of the loss of
7 other people having personal communications and 7 swamp -- other marsh species replaced it; is that
8 then the attorneys or perhaps your researcher, 8 right?
9 Sarah Mack? 9 A. Some.
10 A. Well, all we need is one deposition 10 Q. Okay. Do you think that the
11 or two depositions of people that you trust, that 11 resolution -- or the quality of the image in
12 you believe are telling you the truth, to make 12 Figure 7 -- I mean, there are a lot of dark
13 that statement. 13 spaces in Figure 7, right?
14 Q. Do you know -- you said you did not 14 A. Yes. Again, I've been to the site.
15 know Gatian Livaudais personally, right? 15 Q. And the area that's often referred
16 A. I may have met him, but I don't 16 to as the Golden Triangle appears very dark in
17 remember the face. 17 this figure, right?
18 Q. What about Junior Rodriguez? 18 A. Yeah. It's extremely messed up.
19 A. I've been to many, many meetings 19 Q. But it's not entirely open water,
20 where he was passionately -- almost in tears 20 right?
21 about the storm -- the MRGO's impact. 21 A. And it doesn't show as entirely open
22 Q. Do you have an opinion or do you 22 water.
23 have a basis to make an assessment of whether he 23 Q. Okay. So, which -- other than the
24 was trustworthy? 24 area west of Paris Road, what parts of the
25 A. He was the parish president. He did 25 Central Wetlands Unit that once were swamp are
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1 now open water? 1 instance, I believe, this is about 400 acres and
2 A. Well, you can see the opposite, 2 it's one meter deep and you have to fill it up to
3 which is the southern triangle. That is 3 where it's above the water surface in order to
4 primarily open water. The rest of it is patchy 4 think about planting cypress. And, so, that's a
5 Spartina patens, Spartina alterniflora, and lots 5 calculation you could do. It's a triangle. So,
6 of ponding. 6 it looks like an isosceles triangle. It wouldn't
7 Q. Which is the section that you 7 be hard to compute.
8 described as primarily open water? I didn't 8 Q. Can you give any kind of very rough
9 follow where you were. 9 estimate at this time?
10 A. The southern triangle, near 10 A. No. I don't have scale. There's no
11 Hopedale, is about the same size as the other 11 scale on this drawing. I wouldn't do that.
12 area. 12 Again, we have it in the report if you want it.
13 Q. But you're just look -- basing those 13 Q. But you don't recall roughly from
14 comments on this one figure; is that right? 14 your report what it would be?
15 A. No. I've been out there, again, 15 A. No.
16 many times -- 16 Q. Where -- where might one get that
17 MR. MEUNIER: 17 much dredge spoil in order to create those areas?
18 Objection to the form of the 18 A. From either the river or Lake Borne.
19 question. 19 Q. Are you familiar with the Beneficial
20 EXAMINATION BY MS. MILLER: 20 Use of Dredged Materials Program that the Corps
21 Q. Okay. 21 has?
22 A. -- and measured water depth. 22 A. Yes.
23 Q. In the entirety of the Central 23 Q. What do you know about that program?
24 Wetlands area? 24 A. They do a lot of dredging, and if
25 A. Dr. Day and I did the whole thing 25 they're close to an area that would benefit from
Page 223 Page 225
1 with our teams. 1 it, then, why not put the spoil there.
2 Q. For purposes of this litigation? 2 Q. And are you familiar with the use of
3 A. Actually, no. It was for the 3 dredged material from the MRGO to create or to
4 assimilation wetland project. We wanted to know 4 attempt to create additional wetlands in the
5 how much dredge spoil we were going to have to 5 vicinity of the MRGO?
6 bring in. 6 A. I'm aware that there don't appear to
7 Q. And is that the method by which you 7 be very many. I mean, I couldn't see -- I
8 proposed to raise the land area in order to plant 8 couldn't point out a project that looked like a
9 cypress trees? 9 dedicated dredging project as I could point out
10 A. Correct. 10 in, say, the LaBranche Wetlands.
11 Q. And have you reached a conclusion 11 Q. And you're relying only on Figure 7
12 about how much dredge spoil that would require? 12 of your report?
13 A. It's going to be very expensive, 13 A. No. You could look at any figure
14 about $65 million project. 14 and you could see that, by far, most of the area
15 Q. Do you know where you might get -- 15 is converting to open water or already has
16 well, the quantity of dredge spoil, do you have 16 converted open water.
17 an estimate of that? 17 Q. So, you're familiar with the
18 A. We do. It's in our final report 18 existence of the program, but you are not
19 that we prepared for the Sewerage and Water 19 familiar with specific projects related to the
20 Board. 20 MRGO?
21 Q. And what is the rough estimate of 21 A. Yes.
22 how much -- 22 Q. Are you aware that there are any
23 A. I can't remember. 23 projects?
24 Q. I mean, I'm not even sure -- 24 A. I think that there have been a
25 A. Well, you have to fill up -- for 25 couple, yes.
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1 Q. But you don't -- you haven't looked 1 A. No. Nutria.
2 at the quantities of land created by those 2 Q. Oh, nutria. The nutria, maybe it
3 projects? 3 was Dr. Day yesterday, described that they eat
4 A. No. 4 the young trees; is that right?
5 Q. You've already referenced the figure 5 A. Yes.
6 on Page 25 of your report. In the caption there, 6 Q. Okay. Dr. Day also mentioned that
7 it says it's from Lake Maurepas. Is this a 7 you were responsible for putting together
8 photograph that you took? 8 Appendix B of your report. Can you tell me what
9 A. One of either myself or one of my 9 these comments came from?
10 team. I recognize the swamp. It's Station 12-A, 10 A. I believe most of this -- this
11 I believe. 11 particular appendix was assembled by Dr. Mack
12 Q. And what -- what year was this 12 with the lawyers and we did -- we put it -- we
13 photograph taken? 13 put the thing together into the appendix.
14 A. Probably around 2006 or 2007. 14 Q. So, you don't know where Dr. Mack or
15 Q. And what -- did you -- why did you 15 the lawyers selected these comments from?
16 include this photograph in your report? 16 A. Well, I mean, we were involved, but
17 A. Because we wanted to show what the 17 I disagree with John in the sense that I think we
18 Central Wetlands probably looked like, although, 18 both put this together with Dr. Mack.
19 they probably looked quite a bit better than this 19 Q. Okay.
20 figure, but we wanted to show what a cypress 20 A. And I do not believe that I had a
21 swamp actually looked like. Not everybody knows. 21 lot of input on this particular appendix.
22 THE VIDEOGRAPHER: 22 Q. Okay. But he thought you might be
23 Off the record. 23 able to tell me the source -- these are obviously
24 (Whereupon, a discussion was 24 comments and responses copied from something. Do
25 held off the record.) 25 you know the source of these comments and
Page 227 Page 229
1 THE VIDEOGRAPHER: 1 responses?
2 On the record. 2 A. I suspect Environmental Protection
3 EXAMINATION BY MS. MILLER: 3 Agency, Region 4. I don't know where those came
4 Q. You have obviously done a lot of 4 from other than Environmental Protection Agency,
5 work in the Maurepas Swamp that you have 5 Region 4, and U.S. Department of Commerce,
6 described today and I don't remember if it was 6 Assistant Secretary For Science and Technology.
7 you or Dr. Day that discussed planting trees 7 That's about -- U.S. Department of Interior.
8 there in an effort to restore the swamp. 8 Q. So, the agencies that are listed
9 A. Yeah. My group has planted tens of 9 here -- the comments underneath their names,
10 thousands of seedlings. 10 presumably, are attributed to them, but you don't
11 Q. And what is the time frame over 11 know the context of when these comments were made
12 which you've been planting those seedlings? 12 or --
13 A. We have plantings that date all the 13 A. I certainly don't remember.
14 way back to probably 1992. 14 Q. Okay. So, is this basically someone
15 Q. What are the result -- how are 15 else put this together. Did you read it before
16 those -- how successful are those plantings? 16 putting it in your report?
17 A. Most of them are dead. 17 A. Yes.
18 Q. Why is that? 18 Q. Okay. But you don't know where --
19 A. Saltwater intrusion from MRGO, 19 A. Again, as I think I said this
20 partially. 20 morning, the historic comments that came in came
21 Q. What other reasons have made the 21 in in very piecemeal fashion, a fax here, fax
22 plantings unsuccessful? 22 there from this person or that person. Everybody
23 A. We've had herbivory problems. 23 was out trying to resource these -- any comments
24 Q. Those are the caterpillars that you 24 that we could find that were pre-MRGO, and that's
25 described? 25 what I think eventually ended up in that binder

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1 that we never saw. 1 followed, obviously, they're going
2 Q. Okay. Can we look at the document 2 to be preserved, and if there
3 that you brought today that had -- you said you 3 needs to be an in-camera review by
4 brought one thing that had a collection of those 4 the court for privilege, that can
5 comments? 5 be done, with the appropriate
6 A. It's in there somewhere, yeah. 6 motion practice with reserve the
7 MR. MEUNIER: 7 right to follow up, do a
8 What are they? 8 supplemental telephone deposition
9 THE WITNESS: 9 of Dr. Shaffer if it --
10 They are some comments that 10 THE WITNESS:
11 Pierce O'Donnel faxed to me. 11 I mean, I think I should
12 MS. MILLER: 12 have been given the opportunity to
13 There was a blue folder, I 13 just move the material into the
14 think, earlier today. 14 other room. We hadn't even
15 A. I don't know where this all -- do 15 started yet. There was a pile in
16 you remember them being loose? 16 front of me. You should have
17 EXAMINATION BY MS. MILLER: 17 said, do you want to move that
18 Q. Yeah. They were in a blue folder. 18 into the other room.
19 A. I think maybe because we had written 19 MS. MILLER:
20 on them, it was sort of an assignment from -- 20 Instead, I asked you what it
21 again, the lawyers will have to tell you this 21 was. You said it was materials
22 because it was not -- I don't know legalese, but 22 you relied upon in forming your
23 I think Jon Andry thought that, for some 23 opinions in this case.
24 reason -- he has four pieces of information that 24 THE WITNESS:
25 he knows that he can say that you guys don't get 25 What I was handing John, Dr.
Page 231 Page 233
1 that was in that pile. Remember this morning, I 1 Day, yesterday.
2 had accidentally brought in a pile that I had not 2 MR. MEUNIER:
3 read yet, something I didn't get to. Maybe Jerry 3 It is important, I guess,
4 can explain. 4 for the record and for me to know,
5 MR. MEUNIER: 5 frankly, to what extent you relied
6 I talked with Andry on the 6 on what we're talking about.
7 phone before coming over. He told 7 THE WITNESS:
8 me that a draft report and several 8 None of the bottom ever got
9 other documents reflecting 9 close to pulling any of that
10 comments with attorneys were taken 10 stuff. None of that new stuff, I
11 by him out of material that Dr. 11 didn't even --
12 Shaffer brought today because he 12 MS. MILLER:
13 considered them to be privileged. 13 There was one --
14 MS. MILLER: 14 MR. MEUNIER:
15 So, he took them out of the 15 Maybe you can identify it.
16 room. 16 MS. MILLER:
17 MR. MEUNIER: 17 We discussed it this
18 They're taken out. 18 morning. There was one clip of
19 MS. MILLER: 19 documents that you indicated you
20 They're gone. 20 had not read yet. I don't know
21 MR. MEUNIER: 21 what they were. There were
22 I suppose since they've been 22 documents I was just inquiring
23 classified or declared to be 23 about are ones that you
24 privileged by plaintiffs' counsel, 24 indicated -- I forget how you
25 the procedure that should be 25 described them.
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1 THE WITNESS: 1 a chance to, if necessary, get the
2 I think they were faxes from 2 court to decide whether that
3 Pierce O'Donnel for the very first 3 material from Counsel to the
4 report, for the draft report. 4 witness is or is not subject to
5 John was out of the country. I 5 nondisclosure based on privilege.
6 was writing like crazy. It was a 6 MS. MILLER:
7 Saturday and Sunday. Pierce kept 7 That's fine.
8 calling me and said, go to the fax 8 EXAMINATION BY MS. MILLER:
9 machine. I got something great 9 Q. So, maybe I misunderstood what you
10 from the U.S. Fish & Wildlife. 10 were saying before we got into this discussion
11 That's where I got a lot of the 11 about whether the documents might be privileged,
12 quotes in the body of the text, 12 but I thought you were indicating that some of
13 were from those faxes. 13 the documents you brought this morning might have
14 MS. MILLER: 14 been the source for the information in Appendix
15 So, they are documents from 15 B.
16 the litigation that Dr. Shaffer 16 A. No, I don't think so.
17 thinks that he drew the 17 Q. Okay. So, you have nothing in your
18 information repeated in Appendix 18 stack and you don't remember where Appendix B was
19 B. 19 drawn from?
20 THE WITNESS: 20 A. Again, to my knowledge, I had very
21 No, not Appendix B. Most of 21 little involvement with Appendix B.
22 that stuff were the quotes that I 22 Q. Okay. That's fine. We can leave it
23 put on the body of the text in the 23 at that.
24 rough draft. 24 A. We -- John and I -- Dr. Day and I
25 MR. MEUNIER: 25 mostly were in charge of the science. The stuff
Page 235 Page 237
1 Quotes in your report are 1 that we wanted ancillary came in from many
2 taken from material faxed by 2 different sources.
3 Pierce O'Donnel? 3 Q. Okay. Are you aware of whether
4 THE WITNESS: 4 vegetation of any type had grown on the spoil
5 I'm not sure I know what 5 bank created from dredging the MRGO?
6 that means. But Pierce found 6 A. No. I've never been on that spoil
7 quotes and faxed them to me that 7 bank.
8 came from the late '50s. 8 Q. Okay. So, you don't know whether
9 MR. MEUNIER: 9 there was any vegetation on it?
10 All right. Well -- 10 A. No. The photos that I've seen are
11 THE WITNESS: 11 the historic ones when it was being cut and the
12 They were warnings to the 12 dredge was being dumped and everything was
13 Corps that if they built MRGO, 13 smothered. So --
14 saltwater intrusion was going to 14 Q. So, after that, you don't know what
15 occur. Wetlands loss was going to 15 happened between dredging the channel and
16 be dramatic. 16 Hurricane Katrina?
17 MR. MEUNIER: 17 A. Well, it widened to 1,500 feet, on
18 Given where we are and given 18 average. So --
19 the fact we don't have the 19 Q. But in terms of vegetation that may
20 material anyway, and I doubt that 20 have grown on the spoil bank, you have no
21 I have the authority to let you 21 knowledge of that.
22 question him on it now anyway, 22 A. I would think it would be in the
23 let's just reserve defendants' 23 bottom of the channel as it got eroded.
24 rights to supplement this 24 Q. But you don't know?
25 deposition as needed after we have 25 A. Well, I mean, if you erode a
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1 channel's banks, it can't be vegetated. 1 on it. Any sort of mud deposit eventually is
2 Q. Are you aware that the hurricane 2 going to be become vegetated and then it may or
3 protection levees that were built as part of the 3 may not get eroded immediately after. But the
4 Lake Pontchartrain and Vicinity Hurricane 4 seed bank is pretty tremendous.
5 Protection Plan were built on top of the area -- 5 Q. Okay. So, that's what you assigned
6 the spoil bank area created from dredging the 6 to Dr. Bea?
7 MRGO? 7 A. We just communicated back and forth
8 A. I'm definitely not a levee person. 8 on what vegetation he was going to put in the
9 That -- we have nothing to do with levees. 9 model. And, so, again, it was a sensitivity
10 Q. But the location of the levees, are 10 analysis. Should there be shrub scrub on there,
11 you familiar with the fact that they were built 11 and I thought that was a very likely habitat for
12 on top of the spoil bank from the MRGO? 12 shrub scrub, Chinese tallow, you know, trash --
13 A. No. I mean, if you're talking about 13 trashy wood plants -- woody , but trashy plants.
14 this black line, roughly -- is that what 14 Q. Did you do any research to determine
15 you're -- 15 what was actually there prior to Hurricane
16 Q. Well, if you're not familiar with 16 Katrina in your --
17 the location of the levees that were 17 A. No. I just reconstructed that
18 constructed -- 18 scenario based on what would happen almost
19 A. No. I mean, I know where the levees 19 anywhere --
20 were constructed. I just don't know anything 20 Q. So, your understanding --
21 about the levees themselves. 21 A. -- in coastal Louisiana.
22 Q. Do you know anything about the size 22 Q. Your understanding of the soil types
23 of the spoil bank created from dredging the MRGO? 23 and the coast generally is what you based that
24 A. No. 24 on?
25 Q. Okay. And prior to Hurricane 25 A. Elevation, tidal inundation,
Page 239 Page 241
1 Katrina, you had not been out to the MRGO levees; 1 salinity regime.
2 is that right? 2 Q. Okay. And did you give Dr. Bea any
3 A. No. 3 other information regarding vegetation?
4 Q. Okay. And by "MRGO levees," I mean 4 A. No.
5 the levees along Reach 2 of the MRGO. 5 Q. Did you say that you were
6 A. Correct. 6 responsible for giving him information about
7 Q. Okay. And you have not looked at 7 erosion of the banks of the MRGO?
8 photography to determine whether there was any 8 A. No. Under the scenario -- I believe
9 vegetation that had grown on those levees or on 9 Scenario 3, had MRGO not eroded, they needed to
10 the MRGO spoil banks? 10 be able to put the conditions, the landscape,
11 A. Other team members were responsible 11 back in as a Scenario 3, MRGO built at 650 feet
12 for that issue, Bob Bea. 12 wide, and it didn't erode.
13 Q. Okay. So, you have not looked into 13 Q. Okay. So, you were responsible for
14 that issue? 14 giving Dr. Bea information about what type of
15 A. No. Other than having communication 15 vegetation to place on that area assuming it had
16 with Bob Bea and him asking me, for instance, if 16 not eroded?
17 we had armored the channel and if the distance 17 A. Yes.
18 between the channel and the toe of the levee were 18 Q. Okay. Were you responsible for
19 intact and not eroded, would something grow on 19 measuring and providing information regarding how
20 it, and if something would grow on it, what would 20 much it did erode?
21 grow on it. 21 A. No.
22 Q. And what was your response to those 22 Q. Okay.
23 questions? 23 A. It's obvious how much it eroded.
24 A. Well, it would have depended on the 24 Q. Well, but if you're trying to plug
25 salinity. Certainly, something would have grown 25 it into a model, presumably, you need a specific
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1 number, right? 1 MR. MEUNIER:
2 A. Well, I mean, we know that it eroded 2 As we go through these, can
3 from 15 to 30 feet a year. 3 we state for the record either the
4 Q. But you agree that the edges of the 4 number they have as an attachment
5 MRGO -- or the banks of the MRGO are not uniform; 5 to your report or the Bates number
6 is that right? 6 in the bottom right-hand corner?
7 A. Not uniform. 7 MS. MILLER:
8 Q. It's not a straight line, right? 8 Right.
9 A. No. 9 A. So, does this one not -- this is
10 Q. No, it's not a straight line? 10 019.
11 A. No, it's not a straight line. 11 EXAMINATION BY MS. MILLER:
12 Q. Right. Okay. So, were one to plug 12 Q. And that one, you used as Exhibit 1
13 in information to a model, you might do a 13 to your report?
14 measurement of which parts were -- you know, the 14 MS. MILLER:
15 specific erosion of -- of the actual length of 15 I mean, if you -- you know,
16 the channel; is that right? 16 we were just given this
17 A. You'd have to talk to Dr. Bea. 17 supplemental report yesterday. We
18 Q. Okay. So, you were not involved in 18 can wait to discuss this after,
19 any of that? 19 you know, we even know whether
20 A. No. 20 that's something that can be
21 Q. So, were you -- where you reference 21 admitted in the litigation.
22 erosion and widening of the MRGO in your report, 22 MR. MEUNIER:
23 what are you basing that on? 23 I would suggest you assume
24 A. The real erosion from FitzGerald. 24 admission at this point and ask
25 There's lots of information in the FitzGerald 25 him whatever you want to ask him
Page 243 Page 245
1 report on exactly how much of the bank is eroded. 1 about it.
2 They've got actually the original project size 2 MS. MILLER:
3 and then a black line on each side on the erosion 3 All right.
4 all the way from Reach 1 to the coast. Many, 4 A. So, were you wanting to ask me about
5 many figures in a row, photos in a row. 5 this?
6 Q. Okay. So, you rely on FitzGerald 6 EXAMINATION BY MS. MILLER:
7 for that -- 7 Q. Well, can you describe why you find
8 A. Yeah. 8 that photograph important?
9 Q. -- information? 9 A. Extremely dense swamp on the western
10 A. They did very careful information, 10 side of the -- oh, I guess it's the eastern side
11 very careful analysis. 11 of this access canal, dense trees, cut down,
12 Q. And the statements in your report 12 clear-cut trees in piles over here where the
13 refer to just the general knowledge that erosion 13 spoil or -- I assume where the spoil is going to
14 occurred? 14 be placed, but maybe that's where they're going
15 A. Yes. 15 to cut -- widen the GIWW.
16 Q. Okay. I'd like to ask you about a 16 Q. How do you know that those are cut
17 couple photographs. Maybe it would be better to 17 down trees placed into piles?
18 do that after a break, when I have a minute to 18 A. We've seen close-ups -- I think it
19 organize them. But maybe we could go through the 19 shows up in some of our historic photos in
20 large-format photographs that you have attached 20 Appendix -- this is a very typical scene here and
21 to your supplemental expert report. 21 there are closer shots of it, I think, in our
22 A. Here's the first set to -- of about 22 Appendix E. Yeah, they generally cut the trees
23 14 or so. 23 down where they were going to put the spoil
24 Q. Okay. What are you -- why did you 24 because they had to move that dredge pipe and
25 include that photograph? 25 they didn't want to disassemble it.
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1 Q. But do you know whether that 1 to the one marked NED-275 that ends in 56.
2 triangular area is a place where they intend to 2 A. Can you give me a black felt pen
3 place spoil? 3 or --
4 A. I do not know. It looks like it's 4 Q. I don't have one on this.
5 where the MRGO will run into the GIWW, so, they 5 A. Why don't you look at the big ones
6 may be actually just going to cut that whole 6 so the number in the bottom right is big enough.
7 thing out. 7 Q. The one that has the Number 2 in the
8 Q. Let me ask you a few background 8 bottom right, we discussed yesterday with Dr. Day
9 questions. In terms of these photographs 9 and you, I believe, agreed with his testimony
10 generally, you agree that we don't know the scale 10 that this is Reach 1 of the channel. Do you have
11 of any of them; is that right? 11 any observations about that photograph?
12 A. That's right. 12 MR. MEUNIER:
13 Q. Okay. And we've already discussed 13 What's the Bates number?
14 that that makes certain judgments difficult to 14 I'm sorry.
15 make. 15 THE WITNESS:
16 A. It does, but a photograph is so much 16 014.
17 better than somebody's hand rendition of what 17 MS. MILLER:
18 occurred, of what the situation looked like right 18 Yeah.
19 before the channel was carved or during the -- 19 A. Obviously, the center of this
20 when the channel was carved. It's very obvious. 20 photograph is all very dense cypress swamp.
21 For instance, there's no question that this is a 21 EXAMINATION BY MS. MILLER:
22 very dense stand of cypress swamp. 22 Q. And that's where the channel
23 Q. And would you agree that the swamp 23 ultimately will be cut?
24 that appears just to the west of that on the area 24 A. Yes. So, they took 1,500 acres of
25 in between the two waterlines looks to be less 25 cypress swamp directly out carving the channel,
Page 247 Page 249
1 dense? 1 which is a tremendous amount of swamp.
2 A. Little less dense, yes, although, 2 Q. So, that's over 10 percent of the
3 about half of that is very dense swamp, too, and 3 total that was ultimately lost, is that right, in
4 it looks like the background is also dense swamp. 4 the Central Wetlands Unit?
5 Q. You mentioned Appendix E in your 5 A. That's right, at 10 percent, yeah.
6 report, and you were here yesterday for Dr. Day's 6 It's more than --
7 testimony about those photographs, and in 7 Q. I thought you said around 10,000.
8 discussing them, he established that they were 8 A. Well, it varies. I mean, some
9 all -- well, either that he could not determine 9 people get eight to 12,000. There's one estimate
10 the part of the channel that they showed or that 10 in one of the reports that's higher than that
11 they showed what's referred to as Reach 1, the 11 that probably takes into consideration a larger
12 part that goes along the GIWW. Do you agree with 12 area. Again, as Dr. Day mentioned yesterday, the
13 that testimony? 13 Central Wetlands are generally thought of as
14 A. Yes, I do, because John is much 14 being 28,000 acres and some people have them at
15 better and pinning down particular areas than I 15 42,000 acres. So, if you have them at 42,000
16 am. He's really sharp when it comes to lat/long 16 acres, apparently, you can get it at 16,000 acres
17 stuff, and that's just not one of my better 17 of swamp which also died.
18 topics. So, yeah, I agree with exactly what John 18 Q. This one is the Bates number ending
19 said -- Dr. Day, I mean. 19 in 021 and it's marked Number 4 in your -- I
20 Q. Okay. That's all I wanted to 20 guess as part of your supplemental report. You
21 confirm. 21 can look at that copy of it. On the --
22 So, we looked at a few of these 22 A. Here we go.
23 photographs with Dr. Day, but not all of them 23 Q. Are you referring to your --
24 because we did not have good copies of them, but 24 A. Supplemental report. Yeah. Just to
25 I'm not sure what number it is, but can you turn 25 make sure that I don't mess up a location or
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1 something, I just read the bigger legend on the 1 need to kill it in a specific period of time that
2 report. 2 would be, you know, pre-Bayou La Loutre Ridge. I
3 Q. What you're reading is your 3 mean, the bottom line is cutting the Bayou La
4 explanation of why you included these photographs 4 Loutre Ridge. That's what really killed the
5 in here? 5 swamp.
6 A. Correct. So, this one is 6 Q. Do you know the date -- well, you
7 demonstrating that before they moved, that 7 have a section in your report that describes the
8 wherever they're going to cut dredge spoil, they 8 timeline of the MRGO. So, is it your
9 first cut down the forest. 9 understanding that work was initiated March 17th,
10 Q. And how do you -- what -- what makes 10 1958?
11 you think that they cut down all of the forest 11 MR. MEUNIER:
12 where they're going to put dredge spoil? 12 What page?
13 A. They can't move the pipe otherwise. 13 MS. MILLER:
14 Q. So, in this photograph that ends in 14 86.
15 021, where you think they've -- I mean, it looks 15 A. Yes.
16 to me like they're placing dredge spoil -- well, 16 EXAMINATION BY MS. MILLER:
17 where do you interpret the dredge spoil to be -- 17 Q. Do you know beyond that date and the
18 A. It's actually off the photograph 18 fact that you have listed here that an access
19 mostly. 19 channel was completed on March 27th, 1961 -- do
20 Q. But the white area to the left of 20 you know -- have any knowledge of the time frame
21 the photograph, or the lighter area? 21 for what happened in between 1958 and 1961 in
22 A. Yeah. That -- that looks like it 22 terms of how much progress they made and the
23 could be marsh. 23 order in which it proceeded?
24 Q. Does it look like there's some trees 24 A. No, but we know that the La Loutre
25 in there? 25 Ridge had not been cut yet.
Page 251 Page 253
1 A. Yes. 1 Q. Okay. But you don't know the -- how
2 Q. And, in your opinion, it looks like 2 quickly -- or from the photograph -- okay. So,
3 those have been cut? 3 obviously, if work was begun, we don't know
4 A. Well, those got killed by the dredge 4 exactly what was done first, but -- or you don't
5 spoil. I don't quite know how much flows and 5 know exactly what was done at each month, for
6 when it settles out, but we have, I think, 6 example, between 1958 and 1961; is that right?
7 historic photos in Appendix E that shows dredge 7 A. Yeah, but the salinity records show
8 spoil being -- swamp being smothered by dredge 8 very clearly that the La Loutre Ridge was cut in
9 spoil. 9 '61 or late '60. They jumped by five parts per
10 Q. So, the trees that are reflected in 10 thousand.
11 the lighter area that's sort of triangular on the 11 Q. The reason I'm asking is because
12 left-hand side of this photo, you think that the 12 this photograph that is -- ends in Number 021
13 trees -- some of those trees look like they've 13 that you've marked as Number 4 for your
14 already died? 14 supplemental report, it has the date on the
15 A. It's hard to tell. 15 bottom June 6th, 1958. So, that's less than
16 Q. And you -- so, in this picture, you 16 three months after construction began; is that
17 don't know whether those trees are still alive or 17 right?
18 not? 18 A. Right.
19 A. No. 19 Q. So, to the extent that some of the
20 Q. So, you don't know that they have 20 cypress in this white area look -- well, you can
21 been killed by the dredge spoil at the time this 21 agree that the trees are certainly much thinner.
22 photograph was taken? 22 A. They may have been cut.
23 A. No. It's -- if you think about 23 Q. But you don't know?
24 the -- the point of it all, though, all of this 24 A. Well, I don't know if those are
25 swamp was killed by MRGO. So, I'm not sure we 25 stumps. They certainly could be. It's difficult
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1 to tell. 1 photograph, right?
2 Q. So, you can't say whether that shows 2 A. Yes.
3 a thinner swamp in that area than behind the -- 3 Q. And as you go farther towards the
4 whatever that line is that must be some kind of 4 top of the photograph, they are less dense; is
5 elevation change? 5 that right?
6 A. You can definitely see it's a 6 A. It appears to convert to fresh marsh
7 thinner swamp. What you can't see is why it's 7 there, or what's now -- looks just like mud.
8 thinner. 8 Q. So, the dense trees are close to the
9 Q. Okay. Okay. And the one that you 9 IHNC and what is -- I think you see Paris Road at
10 have numbered 6, ends in 056 on the Bates number, 10 the bottom right diagonal.
11 and that reflects the area -- well, the IHNC is 11 A. Right.
12 in the foreground, you see the GIWW extending to 12 Q. And that's right, that that's
13 the top of the photograph; is that right? 13 close -- the dense trees are close to the IHNC
14 A. Yes. 14 and the GIWW?
15 Q. And what do you observe about the 15 A. Yes. There's also a dense stand on
16 wetlands or swamp in that photograph? 16 the upper left side of the photo.
17 A. In the legend, it says: Note that 17 Q. Right. That's what I was meaning,
18 there has been a very significant removal of 18 alongside the northern part of the GIWW; is that
19 trees in both the channel and disposal areas. 19 right?
20 Q. I'm sorry. The legend, you're 20 A. Yeah.
21 referring to your supplemental report? 21 Q. Okay. Okay. So, you've marked as
22 A. Correct. 22 Number 7 one that ends in 074.
23 Q. Not the text on the photograph? 23 A. Yeah.
24 A. No. 24 Q. You are taking a minute to read what
25 Q. It says: "Sediment laden water is 25 you have written about that; is that correct?
Page 255 Page 257
1 smothering vegetation." But can you observe some 1 A. Correct, but you can ask me a
2 areas where the trees appear more dense than 2 question, if you wish.
3 others? 3 Q. Where do you observe trees in this
4 A. Yes. 4 photograph?
5 Q. And areas where there appear to be 5 A. Along the natural water bodies, they
6 no trees? 6 are forested. There are patches of trees
7 A. Yes. 7 interspersed with marsh, very dense patches of
8 Q. And where are the areas of no trees? 8 trees interspersed with marsh. Some of the trees
9 A. Looks like around the center of the 9 are rounded. So, they're probably live oaks on
10 photograph. 10 higher elevations.
11 Q. In the lighter area? 11 Q. Where do you see rounded trees?
12 A. Yeah. Yes. 12 A. On the bottom of the -- there was a
13 Q. Okay. So, the trees are in the 13 linear cut on the bottom with a spoil bank. Some
14 foreground? 14 of those trees appear to be live oaks.
15 A. Correct. 15 Q. Okay. Lining the water there that
16 Q. Okay. 16 extends off of the photograph on the right?
17 A. So, this is probably a situation 17 A. Yes.
18 where you have swamp interspersed with fresh 18 Q. On the bottom part. There's also a
19 marsh. 19 waterway that, I believe, is Bayou Bienvenue.
20 Q. Okay. And it looks like there are 20 A. Correct.
21 differences in the density of the trees that you 21 Q. Do you see any -- or are you able to
22 do see; is that right? 22 discern from this photograph trees -- what would
23 A. Yeah. They are quite dense in the 23 be south of Bayou Bienvenue but the top half of
24 center. 24 this photograph or top third of this photograph?
25 Q. In the very center of the 25 A. Top third appears -- well, yeah, top
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1 third on the right side, there's a forest, but it 1 Q. So, you've marked this one Number 8
2 appears to be primarily that tall fresh marsh. 2 and you say that this shows trees in the throat
3 Q. Okay. As far as you can tell. Do 3 of the funnel; is that right?
4 you want to mark on this one that's -- I lost 4 A. That's right.
5 what number exhibit -- I think it's 6. 5 Q. I've marked this as Shaffer Number
6 MR. MEUNIER: 6 7. Can you show me where the trees in the throat
7 6. 7 of the funnel are located?
8 EXAMINATION BY MS. MILLER: 8 (Whereupon, Shaffer Exhibit
9 Q. If you want to mark on this one that 9 Number 7 was marked for
10 I've marked as Exhibit 6 where you saw the area 10 identification.)
11 of trees. 11 A. So, where is the throat of the
12 (Whereupon, Shaffer Exhibit 12 funnel. See, Dr. Day is way -- way better at
13 Number 6 was marked for 13 this than I am and, in fact, I don't think I'll
14 identification.) 14 try. But it must be -- it has to be here.
15 A. (Complying.) That looks like a 15 EXAMINATION BY MS. MILLER:
16 marsh burn. 16 Q. Okay. Can you --
17 EXAMINATION BY MS. MILLER: 17 A. But I'm not going to --
18 Q. Would you circle what you -- I'm 18 MR. MEUNIER:
19 sorry. That line that you just drew, is that 19 Don't speculate.
20 trees? 20 THE WITNESS:
21 A. Uh-huh. 21 Yeah. Exactly.
22 Q. Okay. 22 A. I'm not going to speculate.
23 A. It's going right below them. They 23 EXAMINATION BY MS. MILLER:
24 look very tall. It's hard to say whether these 24 Q. Okay. Well, can you just circle on
25 are small patches of forest, so, I'm not going to 25 that one where you see trees?
Page 259 Page 261
1 circle them. 1 A. Sure. These are probably trees,
2 Q. Okay. You thought that the top 2 too, but it could be shrub scrub.
3 third of the photograph, as far as you can tell, 3 Q. Okay. And this is another one that
4 looks like a fresh marsh environment? 4 I'll mark as Exhibit 8. It's the one you've
5 A. It's fuzzy. It's really not 5 labeled as Number 9, and it ends in 079. Can you
6 possible to determine what that is. 6 show me on that one where you observe trees?
7 Q. Okay. Well, Number 8 seems to 7 (Whereupon, Shaffer Exhibit
8 reflect a similar landscape as Number 7. Number 8 Number 8 was marked for
9 8 ends in 077 on the Bates number. Do you agree 9 identification.)
10 that that's a similar -- 10 A. Well, you have Bayou Bienvenue that
11 A. Yeah, with large trees, especially 11 definitely has got large trees that appear to be
12 along water bodies. 12 oaks, and then this access channel is cutting
13 Q. Maybe I got that wrong. Okay. 13 through it. This looks more like shrub scrub in
14 Yeah. That's similar. So, does that look 14 the center here.
15 like -- do you know the water body that goes -- 15 EXAMINATION BY MS. MILLER:
16 do you know what this is? 16 Q. Can you label that as shrub scrub?
17 A. Let's see. Let me -- let me make 17 A. Let me make sure that that's what I
18 sure I'm orienting myself properly. 8. What 18 think it is. Looks like shrub scrub.
19 happened to 8? 7 goes to 13. Something happened 19 Q. So, those are the -- basically, the
20 to -- oh, there it is. Good stands of trees 20 main observations you have on that photograph?
21 along bayous. Good tree -- good tree cover in 21 A. Lots of live oak, yeah.
22 the throat of the funnel. 22 Q. The live oak, you think, is what
23 Q. Can you -- 23 lines Bayou Bienvenue?
24 A. It just says there's a channel 24 A. Correct.
25 snaking off to the left. 25 Q. And are those open water areas, the
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1 light areas in this photograph? 1 right-hand side of the photograph?
2 A. Yes. 2 A. Yes.
3 Q. So, those reflect land loss prior to 3 Q. So, this, according to the caption
4 construction of the MRGO, right? 4 on the bottom of the photograph, says it's
5 A. Not necessarily. This could be a 5 looking northwest.
6 high water event. That's why it's very tricky 6 A. Right. So, see at the top of it,
7 when you do -- whenever you do land loss, you 7 there's one of the smokestacks that's got a very
8 have to have multiple images of the same area so 8 strong wind signal to it, suggesting high water.
9 that you can see what's happening with the water 9 Q. Okay. In this photograph -- okay.
10 levels. This could just be a meteorological 10 So, this photograph, Lake Borne is to the right.
11 event from the south or the southeast could have 11 You can see where the channel is going to be put
12 brought the water levels up several feet. You 12 in; is that right?
13 would have to have other time frames of the same 13 A. Uh-huh. Yes.
14 image to know what's underneath that water. 14 Q. And there are dark areas in this
15 Q. Okay. But there's certainly a lot 15 photograph. Does that reflect -- it looks to me
16 of water reflected in that particular photograph? 16 like that might be cloud cover; is that right?
17 A. Yes, and in one or two of them, we 17 A. It is cloud cover.
18 actually mention smoke coming out of the northern 18 Q. Okay. So, the dark in this
19 part of the photograph that's heading off in a 19 photograph doesn't necessarily mean those are
20 very rapid rate. It bent over immediately that 20 trees?
21 does -- that is indicative of a -- winds from the 21 A. No, definitely not.
22 south and high water. 22 Q. It doesn't mean that at all?
23 Q. Winds from the south, you would say, 23 A. Those are clouds.
24 always are associated with high water? 24 Q. Okay. So, can you show us what
25 A. Yes. South/southeast. It's called 25 the -- okay. You say this looks to be a high-
Page 263 Page 265
1 meteorological tide. 1 water event?
2 Q. Okay. This one -- sorry -- what did 2 A. Yeah, judging from the plumes of
3 I -- okay. Okay. The next one, I'm labeling as 3 smoke to the north.
4 Exhibit 9. You've marked it as Number 10. Can 4 Q. Okay. So, some of the ponding that
5 you describe what that photograph reflects? 5 is visible in this photograph, you think, may not
6 (Whereupon, Shaffer Exhibit 6 always be a water area?
7 Number 9 was marked for 7 A. Yes.
8 identification.) 8 Q. Can you mark where you observe trees
9 MR. MEUNIER: 9 in this area?
10 Bates number, please? 10 A. Again, they are the linear features
11 MS. MILLER: 11 or sinusoidal features that are along the natural
12 Sorry. Ends in 083. 12 canals. This is mostly marsh.
13 A. It shows some sinuous water bodies 13 Q. Okay. So, if you were to try and
14 that are treed, as most of these natural canals 14 estimate density of the trees that you do see --
15 with natural levees contain trees -- dense stands 15 A. They're very dense, but they're
16 of trees. 16 linear features. They're narrow. They're
17 EXAMINATION BY MS. MILLER: 17 narrow, but dense.
18 Q. So, the trees appear on the banks of 18 Q. So, it almost -- I don't necessarily
19 natural water bodies; is that right? 19 have the best photograph --
20 A. Yeah. Often along natural canals, 20 A. Yeah. Look at this one. This one's
21 slightly raised elevations. 21 so much more clear than even the big ones.
22 Q. Is that what you observe in this 22 Q. Okay. So, am I right to think that
23 photograph? 23 there may only be, like --
24 A. Yes. 24 A. I just drew on the real one. I
25 Q. And is that Lake Borne on the 25 should draw on here. Yikes.
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1 Q. You told me that these are printed 1 more than one. I think the
2 off of a CD, so, I'm sure that you can print them 2 earlier answer answered that
3 again. 3 question, more than one.
4 A. Yeah. I'll try to stop doing that. 4 MS. MILLER:
5 MR. MEUNIER: 5 Okay.
6 Let's hope so. 6 EXAMINATION BY MS. MILLER:
7 EXAMINATION BY MS. MILLER: 7 Q. Okay. This next one ends in 085.
8 Q. And I'm glad it's on the record that 8 You've marked it as Number 11 and I have marked
9 you were the one that did it rather than me. 9 it as Shaffer Exhibit 10. Do you --
10 Okay. 10 (Whereupon, Shaffer Exhibit
11 So, did it look like, though, there 11 Number 10 was marked for
12 may be, like, almost individual trees along that 12 identification.)
13 one water body that you circled? 13 A. This one kind of goes with 12
14 A. No. 14 because it's the same shot, even closer. You
15 Q. I mean, in a line. Am I reading 15 might want to get them both over at the same
16 that wrong? 16 time.
17 A. I think that's a -- that's a -- more 17 EXAMINATION BY MS. MILLER:
18 than individual trees. 18 Q. Okay. We can make this an exhibit
19 Q. Well, along this -- this part that 19 together. 12 ends in 086.
20 goes east-west, like out here? 20 A. Correct.
21 A. Yeah. Those aren't individual 21 Q. So, what do you observe in those
22 trees. Those are stands of trees. Again, we are 22 photographs?
23 pretty far away. 23 A. Very tall marsh plants, probably a
24 Q. Okay. Well, how many trees do you 24 mixture of Phragmites australis, because in the
25 think are shown there? 25 close-up, you see plumes, the white coloration.
Page 267 Page 269
1 A. I would -- I would never wager a 1 The seed head is very distinct on roseau cane and
2 guess at such a thing. Too far away. 2 also Penfound and Hathaway and Claire Brown
3 Q. More than one? 3 characterized the area as being -- it looks
4 MR. MEUNIER: 4 exactly like they characterized it, that being a
5 Object to the form. 5 mixture of Spartina cynoseroides and Phragmites
6 A. Dense stands of linear trees. 6 australis.
7 MS. MILLER: 7 Q. Okay. Do you know what part of the
8 I'm sorry. What was 8 channel this photograph reflects?
9 objectionable about that, form? 9 A. Let me see if it says anything. Oh,
10 What was objectionable about the 10 yes. It's Station 600. So, we could find it on
11 form of that question? 11 the FitzGerald locater map.
12 MR. MEUNIER: 12 Q. Okay. But you can see Lake Borne in
13 I have to think about it. 13 the north of this photograph?
14 MS. MILLER: 14 A. Right.
15 You can get back to me. 15 Q. Is that right? So, it's somewhere
16 Seemed like a pretty 16 where the MRGO is not all that far removed from
17 straightforward question, so, I 17 Lake Borne; is that right?
18 wanted to make sure I wasn't 18 A. Right.
19 misunderstanding. 19 Q. Okay. And where do you see trees in
20 MR. MEUNIER: 20 the -- in this photograph?
21 It was repetitive. 21 A. The purpose of this is to show the
22 MS. MILLER: 22 height of the fresh marsh.
23 Okay. 23 Q. Okay. And the fresh marsh, is that
24 MR. MEUNIER: 24 largely in the foreground?
25 He had said stands already, 25 A. Yes.
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1 Q. Okay. 1 Q. Okay.
2 A. Although, it's in the background, 2 MR. MEUNIER:
3 too, but there's water bodies in between. 3 What's the Bates number
4 Q. Okay. And there seems to be a 4 there?
5 fairly large water -- well, that's a -- would you 5 MS. MILLER:
6 consider that a decent-size pond in the middle of 6 This particular one doesn't
7 the photograph? 7 have it. This is the one that we
8 A. Yes. 8 discussed earlier that we couldn't
9 Q. Again, we don't know the scale of 9 maybe find the exact match on
10 this photograph, but it's several times the size 10 the -- I think it goes with this
11 of the barge from one end to the end of the pipe, 11 one that ends in 095.
12 right? 12 EXAMINATION BY MS. MILLER:
13 A. Yeah, the excavator, and there are 13 Q. Is that right? You agree that this
14 people on the -- at least in Photo 12, you can 14 one you've shown me with no Bates number matches
15 see people on the barge and also how much of the 15 up?
16 freeboard on the barge is covered by marsh, just 16 A. Yeah.
17 to give you an idea just how tall those plants 17 MR. MEUNIER:
18 are. 18 Oh, okay.
19 Q. Can I see the larger one? I had 19 EXAMINATION BY MS. MILLER:
20 trouble finding the people yesterday. 20 Q. Okay. So, this one, we discussed --
21 A. I can point them out to you, if you 21 well, maybe it was earlier today.
22 like. The white guy, looks like he's in a white 22 A. It was.
23 T-shirt, right about the center of the excavator. 23 Q. And this, again, like the last ones
24 Q. Okay. You could see that he's 24 we were discussing, you have included primarily
25 wearing a white T-shirt? 25 to show the fresh marsh; is that right?
Page 271 Page 273
1 A. Looks like it. Blue jeans and a 1 A. Correct.
2 white T-shirt, yeah. 2 Q. And there are not -- do you see any
3 MR. MEUNIER: 3 trees reflected in this photograph?
4 And tattoos. You don't see 4 A. I don't have it -- I put it away
5 the tattoos? 5 already, but I didn't think so. That purpose of
6 MS. MILLER: 6 that was for fresh marsh.
7 No. What is his tattoo of? 7 Q. Okay. What are the other ones you
8 MR. MEUNIER: 8 selected?
9 Says "Kill the swamp." 9 A. Oh, let me look and see if I see
10 A. "Kill the swamp." 10 trees. Yeah, there are trees in this one.
11 EXAMINATION BY MS. MILLER: 11 Again, along the natural water bodies, they are
12 Q. I guess you both have better eyes 12 lined with trees.
13 than I do. That's for sure. 13 Q. So, just, again --
14 I don't know -- okay. Now, maybe we 14 A. There's also trees in the foreground
15 don't need to go through all of these, because 15 at the center that they're going to -- they're
16 there are 35 of them; is that right? 16 about to dig through.
17 A. Yeah. I only have five more marked 17 Q. But are those -- okay. Do you
18 that I -- appear to be of potentially different 18 have -- this is one that you couldn't find the
19 interests than previous ones, and I don't know 19 larger image of; is that right?
20 what that -- like, 16, I think, is the very best 20 A. 16. I think so. Yeah. It's
21 one at showing how tall the fresh marsh is 21 missing because I have a break between 14 and 17.
22 because it has a guy standing in a bateau and 22 Q. Okay. Well, do you -- you've
23 shadows of the height of the -- where they've cut 23 described some trees in the area that will become
24 through them. It's got -- you can actually see 24 the channel and other areas of trees generally
25 that those are probably over 12 feet tall. 25 only along the bayous.
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1 A. Yes. But, again, very dense. 1 middle-ish -- or right middle of the photograph?
2 Q. But you primarily see fresh marsh in 2 A. We certainly don't say anything
3 this photograph; is that right? 3 about it and, personally, you know, as I said
4 A. Yes. 4 before, I have a very difficult time placing
5 Q. Can you give a percentage of trees 5 myself in -- into the location of particular
6 to marsh? 6 photographs.
7 A. I'd prefer not to. 7 Q. Okay. So, you don't know exactly
8 Q. It would be, I'm guessing -- 8 where this is?
9 A. I'm a statistician and, so, it's 9 A. Well, I mean, you can see where the
10 kind of bothersome when people ask you to do 10 channel turns and, so, up at the top, we're
11 stuff that you can't really do well. 11 looking -- you can tell you're looking north.
12 Q. You can provide a error estimate 12 Q. Maybe I --
13 along with it if you would like. 13 A. I mean, we can find it. It's
14 MR. MEUNIER: 14 Station 600.
15 But you don't have to 15 Q. How do you know that it is Station
16 speculate. 16 600?
17 A. Yeah. I'd prefer not to speculate. 17 A. It says so. So, Ivor van Heerden or
18 EXAMINATION BY MS. MILLER: 18 John or -- John or I or all three of us pinned
19 Q. Okay. 19 these things down.
20 A. It's mostly fresh marsh. 20 Q. You, Dr. Day and Ivor van Heerden
21 Q. Okay. Were there others that you 21 looked at these photographs and determined that
22 wanted to point out? 22 they -- that this particular one that ends in 111
23 A. 23 is particularly clear with regard 23 is in the vicinity of Station 600; is that right?
24 to demonstrating very dense stands of trees. 24 A. Correct.
25 MR. MEUNIER: 25 Q. But unlike a lot of the other
Page 275 Page 277
1 Bates number. 1 photographs, this one did not have it stated on
2 A. And very tall -- let me -- let's 2 the photograph itself?
3 see. 3 A. Right.
4 EXAMINATION BY MS. MILLER: 4 Q. And why do you -- what do you see of
5 Q. Can you find the larger photograph 5 significance in this photograph?
6 that it corresponds with? 6 A. Just shows many, many different
7 A. I think so. Yeah, that one's in 7 stands of dense trees.
8 here. 8 Q. But, again, they are interspersed
9 Q. Looks like this. 111. Does that 9 with fresh marsh; is that right?
10 end in 111? 10 A. Tall fresh marsh, yes. Yes. I
11 A. It does. Again, it doesn't look 11 mean, this is just a great example of what
12 quite as good here as in the photograph, but the 12 they're calling scattered swamp. It's not that
13 clarity, nevertheless, is probably the best in 13 the trees are uniformly scattered. It's just
14 the entire set. 14 that they are very dense and they're interspersed
15 Q. Can you determine what part of the 15 with marsh.
16 channel this -- 16 Q. Generally, again, they appear
17 A. It's around 600. So, you can see -- 17 alongside some of the water channels in the area;
18 you're looking up to the north where it's about 18 is that right?
19 to bend, there are some buildings up there at the 19 A. Yeah, but it looks like there was a
20 top. 20 big stand at the bottom center that they've
21 Q. Maybe we discussed this yesterday 21 already cut through.
22 with Dr. Day. There's a water -- straight 22 Q. Doesn't it appear that there is a
23 waterway that goes across -- well, maybe -- yeah. 23 water body that those lined?
24 Do you know what that waterline is that goes 24 A. I don't know.
25 diagonally from the bottom left to the top 25 Q. Do you see beginning in the bottom
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1 right-hand corner -- 1 What's the Bates number?
2 A. Oh, your -- that. You're talking 2 THE WITNESS:
3 about this? 3 This is -- let me look on
4 Q. Uh-huh. 4 this one.
5 A. Yeah, but, I mean, they're not 5 MS. MILLER:
6 lining this. This is a giant patch of cypress 6 It's one of the ones that
7 here and it was here, too. It was where they 7 has --
8 carved out right here at the bottom of the photo. 8 THE WITNESS:
9 This is a very large patch of cypress. 9 139.
10 Q. Can you estimate how many acres that 10 EXAMINATION BY MS. MILLER:
11 is? 11 Q. How do you know that this is the La
12 A. No, I cannot, but if we knew the 12 Loutre Ridge?
13 channel width that had been dredged already or 13 A. Well, it's a large ridge. Let's
14 somebody knew what that linear feature was that 14 see. Where is this located? It's located at the
15 had been -- again, these are not scaled. So, 15 La Loutre Ridge, obviously.
16 there's no way you can put it in acres. 16 Q. According to your supplemental
17 Q. Okay. Do you want to go on to the 17 report, is that right, that's what you're
18 next photograph that you -- 18 referencing?
19 A. Yeah. 19 A. Yeah. Again, especially Ivor, but
20 Q. I assume, like you said about the 20 also John and I, we spent a whole day on these
21 last one, this one ends in 111, you are not able 21 things, making sure that we pinned them down
22 to estimate percentage of trees versus fresh 22 properly. So, that's what that is.
23 marsh? 23 Q. Is that when you selected these 35
24 A. Correct. 24 from a larger group of photographs?
25 Q. Is that true for all of these 25 A. Yes, but not entirely. As I stated
Page 279 Page 281
1 photographs, that you cannot estimate the 1 earlier, Paul Kemp had some of the important ones
2 percentage of trees versus fresh marsh? 2 at the beginning of the series.
3 A. I'm sure that if we were given time 3 Q. Okay. But you -- Ivor van Heerden,
4 and it were important, that we could do it. You 4 you said before, was the one that narrowed the
5 know, you've got a scale -- somebody could tell 5 group down to 35 that you and Dr. Day looked at?
6 us how long that boat was, and then you could 6 A. He and Paul Kemp did that together.
7 scale it and you could actually go out and 7 Q. You were not involved in that
8 measure things. 8 narrowing process?
9 Q. So, there are ways that one might go 9 A. We were not, no. But this one shows
10 about doing that? 10 giant trees on the ridge, very dense stands, very
11 A. Sure. 11 extensive.
12 Q. But it has not been done at this 12 Q. Does it also, though, show that they
13 point? 13 are not solid -- solidly covering the entirety of
14 A. Yeah. 14 the area?
15 Q. And you are not able to estimate it 15 A. Right.
16 just by looking at the photographs; is that 16 Q. So, there seems to be trees in the
17 right? 17 foreground at the top half of the photo. Do you
18 A. No. 18 see any trees --
19 This is about the same as the 19 A. No. That's fresh marsh.
20 previous one. So, I don't think -- we could go 20 Q. Okay. And the trees that are
21 all the way to the end, I think. 21 visible in the bottom half, it appears that
22 31. So, this is just before they 22 there -- to me, some areas, like, in the bottom
23 cut the La Loutre Ridge. It has been deforested 23 right corner. Those are -- seem less dense; is
24 where the cut's going to be made. 24 that right?
25 MR. MEUNIER: 25 A. Little bit.
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1 Q. Okay. So, there's varying densities 1 MR. MEUNIER:
2 in this picture; is that right? 2 We're at 7:00.
3 A. Yes. 3 MS. MILLER:
4 Q. Okay. Are you able to estimate 4 If you want to take a little
5 from -- I mean, this one has more trees than 5 break, I can figure out, you know,
6 others -- how -- how would the -- this photograph 6 exactly what else I want to go
7 compare to your table that reflects the stem 7 offer.
8 densities of a -- I forget your categories. 8 THE VIDEOGRAPHER:
9 A. Potentially sustainable, relic or 9 Off the record.
10 degraded? 10 (Whereupon, a discussion was
11 Q. Right. 11 held off the record.)
12 A. This would be in the sustainable 12 THE VIDEOGRAPHER:
13 category. 13 On the record.
14 Q. Why do you think that? 14 EXAMINATION BY MS. MILLER:
15 A. Because it's on the La Loutre Ridge, 15 Q. Dr. Shaffer, these three figures
16 and we know how high that ridge was. It was six 16 that we marked earlier as Exhibits 5-A, B and C,
17 to eight feet tall and probably one of the most 17 they are Figures 4.2, 4.3 and 4.4 from Dr.
18 sustainable ridges in the entire coastal 18 FitzGerald's report, the one marked 5-A reflects
19 Louisiana. 19 his interpretation of habitats present in the
20 Q. Okay. Okay. So, those are all of 20 1950s; is that right?
21 the ones that you consider significant? 21 A. His team's interpretation.
22 A. They are just other examples of how 22 Q. Okay. And do you -- you've
23 many trees versus how much marsh. 23 described that there may have been some areas of
24 Q. Okay. But you -- from all of these, 24 fresh marsh that are not reflected in this map;
25 you conclude that there -- that all the ones that 25 is that right?
Page 283 Page 285
1 we looked at together just now show a majority 1 A. No.
2 marsh but some trees interspersed in there; is 2 Q. Okay. So, you agree with the
3 that right? 3 characterizations that Dr. FitzGerald has come up
4 MR. MEUNIER: 4 with in this map?
5 Well, objection to that 5 A. No. What I said was that there is
6 improper summary of all the 6 considerable amount of swamp intermixed with the
7 pictures. 7 fresh marsh that's not shown on this map.
8 A. Yeah. Yeah. We've already talked 8 Q. Okay. But you agree with where he
9 about the ones that have very, very dense stands 9 has delineated the fresh marsh; is that right?
10 of cypress. 10 A. That's intermixed with cypress,
11 EXAMINATION BY MS. MILLER: 11 yeah.
12 Q. But the entirety of the -- okay. 12 Q. Okay. Okay. I want to go through
13 That's fine. 13 just a couple more photographs.
14 A. Certainly, that is mostly swamp. 14 Well, actually, before I forget, you
15 Q. Okay. But excluding that one -- 15 and Dr. Day included what I'm marking as Exhibit
16 A. No. There are others that are 16 11 as part of your supplemental report. Can you
17 mostly swamp. 17 describe to me what is -- this is?
18 Q. Okay. Well, we didn't go through 18 (Whereupon, Shaffer Exhibit
19 all of them, so, maybe, you're right, it's not an 19 Number 11 was marked for
20 appropriate summary. But many of them, at least, 20 identification.)
21 show a majority of fresh marsh, as you described, 21 A. It's a 1945 mosaic of the Central
22 right? 22 Wetlands Unit.
23 A. Yes. Very tall, very dense, very 23 EXAMINATION BY MS. MILLER:
24 healthy fresh marsh. 24 Q. And are you able to tell us what
25 Q. Okay. 25 part of the Central Wetlands Unit this reflects?
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1 A. Why don't we have an A on this one? 1 Q. Okay. So, can you mark on the one
2 Is this not finished? Can I get a copy of the 2 that I have put the exhibit sticker on where you
3 supplemental? This is just a draft. 3 think -- like, where north, south, east and west
4 Q. There's one in your stack of 4 is, or at least one of those directions?
5 exhibits. It's Day 3 maybe. 5 A. I think that's north. But, again,
6 A. It's basically designed to 6 Dr. Day is way better at pinning down locations.
7 demonstrate that the 1945 map has a very similar 7 This is not one of my strong points. That's why
8 habitat type from the 1930s map that was created 8 we're a team.
9 from the T-sheets in the sense that it's showing 9 Q. Okay. But the portion of this
10 interspersed cypress swamp or what was referred 10 collection of -- this is four photographs
11 to as scattered cypress interspersed with fresh 11 together; is that right?
12 marsh, and that the locations can be pinned down 12 A. Yes.
13 on that 1930s map. 13 Q. And on one of them, there are some
14 Q. But you right now are not aware of 14 letters printed on there, on the photograph right
15 what part of the Central Wetlands Unit this 15 there?
16 reflects? 16 A. Correct.
17 A. We should be able to figure it out. 17 Q. So, that corner where those letters
18 This -- this is -- the Forty Arpent must be 18 and numbers are is where Lake Borne is; is that
19 somewhere along here. New Canal is probably the 19 right?
20 easiest way to pin it down. 20 A. Yes.
21 Q. Well, do you know what "New Canal" 21 Q. Okay. And you were describing that
22 refers to on this photograph? 22 on the opposite side from where Lake Borne is,
23 A. Do I know where? I don't know where 23 there's developed area, is that right, the
24 New Canal is. I'd have to -- 24 opposite corner from Lake Borne and extending
25 Q. Is that a name you've heard before 25 along what you have labeled as the west side; is
Page 287 Page 289
1 for a canal in the Central Wetlands Unit? 1 that right?
2 A. I think that we've -- when we -- 2 A. Yes.
3 when we found the location of this site, Ivor and 3 Q. And from that --
4 Dr. Day and I -- especially Ivor -- I think that 4 A. I'm trying to think, though.
5 was a very critical feature for him to know 5 This -- when I put it in this orientation, this
6 exactly where this was. 6 looks like Bayou Dupre and this looks like
7 Q. Okay. So, it can be determined 7 Violet. So, it looks like this may have wrapped
8 where this photograph is, but for -- what you see 8 around like this and the Forty Arpent might go
9 in this photograph, why do you find this 9 out that way. So, let me -- I'm pretty sure this
10 significant? 10 is Bayou Dupre right here. In fact, I know it
11 A. Shows extremely dense stand of 11 is.
12 cypress swamp on the entire left side, top to 12 Q. You're now crossing out what you've
13 bottom. 13 previously said as north --
14 Q. I'm sorry. Maybe I put the sticker 14 A. I don't have to cross it out.
15 on the wrong place. Can you tell me on the one 15 Q. Okay. You've added a line to make
16 that I put the Exhibit 11 sticker on which way 16 the N a W.
17 is -- you're considering the top, just so we get 17 A. This is Violet and that's St.
18 our descriptions right? 18 Bernard over there.
19 A. Well, I was just aligning it to the 19 Q. Okay. So, Bayou Dupre is -- would
20 developed area. So, I put that on the western 20 you say that's the largest water -- I guess you
21 side. Oh, but if this is Lake Borne -- okay. 21 wouldn't call it a canal because canal refers to
22 Hold on here. If that's Lake Borne -- so, then, 22 something that's dredged.
23 I oriented it properly. Yeah. So, Lake Borne is 23 A. It's a natural canal. It's a bayou.
24 over on the eastern side and St. Bernard is on 24 Q. That's the largest waterline that
25 the western side. 25 you can see and it goes kind of directly south
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1 and then curves off to the west; is that right? 1 look, it goes into a bayou. So, it is an access
2 A. Yes. 2 canal. So, they probably came up here with a
3 Q. Okay. I just, for the record, want 3 barge.
4 to make sure we can understand what we're talking 4 Q. Okay. So, those are -- that's a
5 about when we read the transcript. So, does 5 logging track and a permanent alteration of the
6 Bayou Dupre cross the Forty Arpent line? 6 land, right?
7 A. Yes. 7 A. And the shape of it looks very much
8 Q. Is that what we see on the west side 8 like the one on the '32 map of FitzGerald. It
9 of the photograph? 9 may be the very same -- the very same one.
10 A. Yes. 10 Q. Well, I have a different copy of
11 Q. Okay. And you -- where did you say 11 that map, which I'm going to show you and mark as
12 Violet is? 12 Shaffer 12. I'll put the sticker on the top
13 A. It turns into Bayou Dupre. 13 right. And this is -- do you recognize this as
14 Q. Oh, okay. And, so, then, on the 14 the same as what FitzGerald used as Figure 4 -- I
15 southernmost part of the photographs, what is 15 think 4.2?
16 that developed area? 16 (Whereupon, Shaffer Exhibit
17 A. It's got to be St. Bernard, right? 17 Number 12 was marked for
18 Q. Well, wouldn't all of this reflect 18 identification.)
19 St. Bernard Parish? Is that right? 19 A. No, it's not 4.2. I think it's
20 A. Yeah. But it doesn't appear that 20 4.8 or 2.8.
21 there's any actual -- it looks like agricultural 21 EXAMINATION BY MS. MILLER:
22 fields. In fact, this is one of those failed 22 Q. Okay. We'll clear that up in a
23 agricultural -- now, I'm getting more and more 23 minute. But do you recognize that as the same
24 knowledge as I look at this closer and also 24 figure?
25 bringing up what we had discovered last time we 25 A. Yes.
Page 291 Page 293
1 looked at this, that these are abandoned 1 Q. And can you -- where do you see
2 agricultural fields. This was an attempt to grow 2 Bayou Dupre in this --
3 agricultural crops in the swamp by cutting down 3 A. It's exactly the same as this
4 the swamp and converting it over to agriculture. 4 right -- the mosaic underneath it. Bayou
5 Q. Okay. Now, can I take a look at 5 Dupre --
6 your -- I think you may have a better photograph 6 Q. Can you mark with your pen? I think
7 than the copy. 7 that's the easiest way.
8 A. Yeah. 8 A. I don't want to mess it all up, but
9 Q. This seems rather faint, but is 9 this is Bayou Dupre, and this is Violet.
10 it -- am I correct -- is that and that what we've 10 Q. Okay. So, in these photographs that
11 seen in other things as logging tracks? 11 we're looking at that I marked as Exhibit 11,
12 A. Yes. 12 this one that you included in your report, this
13 Q. And what is this long, straight line 13 logging track we were just speaking of is south
14 that you can -- that's observed kind of almost 14 of Bayou Dupre, is that right, on this map, on
15 going directly east-west in the bottom maybe 15 this photograph that's Exhibit 11?
16 third, right at the bottom third -- 16 A. Yes.
17 A. That's the primary dragline canal. 17 Q. Okay. So, on Exhibit 12, can you
18 So, they pull the trees in from the side 18 see whether the logging track is marked south of
19 laterally and they drag them down the center 19 Bayou Dupre?
20 canal. That's why that is more prominent than 20 A. It isn't. Yeah. This is -- these
21 any other one. 21 scars are not nearly as big as lots of logging
22 Q. That's that entire line. What about 22 scars, so, they probably missed it.
23 the one that branches off to the north of that? 23 Q. Okay. So, Exhibit 12 does not
24 A. I'm not sure about that. That may 24 include all of the logging tracks that are in the
25 be just some access canal or something. See, 25 Central Wetlands Unit; is that right?
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1 A. Yes. But an important point that 1 would call it southwest corner of the photograph,
2 you can see very beautifully here that you can't 2 there's variation in the density of the trees
3 see here is that the logging track did not 3 visible here; is that right?
4 prevent a stick of cypress from regenerating 4 A. Yeah, definitely.
5 around it. It's just that there's no cypress 5 Q. Okay. And as you get out towards
6 growing in the ditch itself. This is a very 6 Lake Borne, the trees are essentially --
7 dense -- this is a very dense stand of cypress 7 they're -- do you observe any?
8 right around this log -- this is a great example 8 A. There are probably trees on the
9 of how regeneration occurs around logging 9 ridges. You can't see them from this angle.
10 ditches. 10 We're looking straight down. So, it's primarily
11 Q. What about if you extend farther 11 marsh.
12 east in the photograph, does it appear that the 12 Q. Okay.
13 trees taper off? 13 A. And scar lines from what appears to
14 A. Yeah. Had nothing to do with the 14 be maybe hurricane scar -- scour lines.
15 logging ditch, though. 15 Q. Okay. And that's what you described
16 Q. And what does it have to do with? 16 earlier today, that hurricanes can rip up some of
17 A. They just taper off. It turns into 17 the marsh; is that right?
18 fresh marsh. 18 A. Yes.
19 Q. Okay. So, that is part of the 19 Q. And that may or may not regenerate?
20 natural change of swamp to marsh? 20 A. Yes. Yeah. The different types of
21 A. Yes. Yeah, very gradual and, at 21 marsh are differentially susceptible to
22 places, very abrupt, just like we've seen in the 22 hurricanes. Swamps are not.
23 photographs. 23 Q. Okay. So, the -- we were just
24 Q. Okay. And you can see that, also, 24 looking at photographs in Exhibit 11 from 1945.
25 in Exhibit 11 on the west side of the 25 All right. Okay. Hold on one second. So, I
Page 295 Page 297
1 photographs; is that right? 1 think you had said, Dr. Shaffer, that what we
2 A. Yes. It's interesting, though, that 2 marked as Exhibit 12 is the same underlying map
3 the denser swamp -- the densest swamp in the 3 as FitzGerald's Figure 4.8, as Sarah just
4 vicinity that we're looking at is right around 4 confirmed, that that is the case. So, just for
5 the logging ditches. 5 the record, wanted to note that.
6 Q. Does it appear to be more dense to 6 But Exhibit 12 does not have the
7 the southern side of the logging ditches than the 7 coloring. Are you able to determine from Exhibit
8 northern side? 8 12 where -- where there might be scattered
9 A. No. This is all dense. This whole 9 cypress?
10 area is very densely wooded. 10 A. There don't appear to be -- oh,
11 Q. And it tapers off south of Bayou 11 well -- no. This is just the marsh because it
12 Dupre; is that right? 12 wouldn't -- well, you can't tell. No. You need
13 A. South -- tapers off -- well, that's 13 the color. If we can get that color one out
14 a pretty dense swamp, too. 14 again, we can definitely see exactly where it
15 Q. Oh, sorry. I guess I was looking at 15 says there's scattered swamp. This is all mapped
16 where the Forty Arpent canal or levee or both -- 16 as being dense swamp, and you can so that it is
17 A. Just north of the agricultural 17 dense swamp.
18 fields. 18 Q. By that, you mean the white area,
19 Q. North of the agricultural fields and 19 right?
20 east of the Forty Arpent line. 20 A. Yes.
21 A. Yes. Yeah. There's a patch in 21 Q. And it's hard to delineate any
22 there that looks sparser. They might just be 22 particular dense swamp; is that right?
23 smaller trees, but there's definitely a different 23 A. What do you mean by that?
24 signature. 24 MR. MEUNIER:
25 Q. So, even within this -- I guess you 25 Object to the form of the
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1 question. I thought he just said 1 THE VIDEOGRAPHER:
2 he could delineate that. 2 Off the record. Change
3 EXAMINATION BY MS. MILLER: 3 tape.
4 Q. Scattered swamp, you said you were 4 MS. MILLER:
5 not able to delineate on this map without-- 5 We can take a little break.
6 A. Again, if I saw the color -- if you 6 I don't know that I necessarily
7 showed me 4.8, you could -- I could say what this 7 have anything else that I want to
8 stippling is. I don't know what -- this could be 8 go through.
9 light brown on that photo, in which case, it 9 (Whereupon, a discussion was
10 would be scattered cypress. 10 held off the record.)
11 Q. Okay. But to make the determination 11 THE VIDEOGRAPHER:
12 of what's scattered, you're deferring to what 12 We're on the record.
13 FitzGerald's report presents; is that right? 13 EXAMINATION BY MS. MILLER:
14 A. Yes, that's the most accurate -- 14 Q. Okay. I've just been looking
15 that's the most accurate set of maps we have. 15 through the documents that you brought to the
16 Q. So, you defer to him on -- 16 deposition with you today, and I don't know if
17 A. Without question. 17 these two that I'm handing you now go together,
18 Q. -- on the interpretation of the 18 but can you tell me what those are?
19 maps; is that right? 19 A. These are tables that were
20 A. No. It's not the interpretation. 20 constructed for a couple of our publications that
21 It's that it's difficult to name things 21 show different species and these are these
22 sometimes. 22 habitat types in the Maurepas Swamp where we
23 Q. Okay. 23 collect data. It's very similar to the stem
24 A. None of us have ever said anybody 24 density stuff. It's basal area, stem density,
25 did any bad mapping. We said that they made 25 standing wood biomass. Bulk density means how
Page 299 Page 301
1 judgment calls. It's mostly marsh, so, let's 1 strong the soil is. This is just data that have
2 call it marsh and let's not say anything about 2 been collected.
3 the cypress. Somebody else says, well, there's 3 Q. For publications?
4 cypress there. So, you can't just call it marsh. 4 A. This one here is the Maurepas Swamp
5 Okay. Let's call it scattered cypress. Well, 5 data going in JCR. It's one of tables in JCR.
6 what does scattered cypress mean? In somebody's 6 This one here is looking at other authors. It's
7 opinion, it means that the area's degrading. But 7 exactly what I was telling you earlier. We tried
8 if you look at the photographs, which is why we 8 to pull in stem densities that were not just
9 provided them, you can see that the area is not 9 representative of the Maurepas Swamp but were
10 degrading. It's just that they're not scattered. 10 representative of the southeastern United States.
11 They're in long, linear features and they're in 11 Q. Okay. So, these are two documents
12 patches, dense patches of healthy swamp. 12 that you relied upon to create the document that
13 Q. So, reasonable scientists can 13 you ultimately provided to Paul Kemp and Ivor van
14 disagree about the classifications for a 14 Heerden?
15 particular area; is that right? 15 A. Correct.
16 A. The wording. 16 Q. But you did not provide these two
17 Q. Right. 17 documents to them?
18 A. Yeah. I mean, how to -- they all 18 A. No.
19 were measuring the same stuff. 19 Q. Okay.
20 Q. Okay. But you mentioned measuring 20 MS. MILLER:
21 in terms of making actual calculations of 21 Can we mark these as
22 acreage, you and Dr. Day did not do that 22 exhibits just so we know what they
23 yourselves; is that right? 23 are?
24 A. Correct. We were the why. 24 MR. MEUNIER:
25 Q. Okay. 25 Anyone around to make
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1 copies? 1 determination falls within that area.
2 MR. JOANEN: 2 A. Correct.
3 I can make copies. 3 Q. I guess we now have these
4 EXAMINATION BY MS. MILLER: 4 photocopies that I'm going to mark as Shaffer 13,
5 Q. Okay. This one I'm handing you has 5 the two pages that we just discussed that you
6 the title in the front center Lake Pontchartrain, 6 used in deriving the information that you gave to
7 Louisiana, and Vicinity Design Memorandum Number 7 Paul Kemp and Ivor van Heerden on stem density.
8 1, Hydrology and Hydraulic Analysis, Part 1, 8 Can you tell me what this is that
9 Chalmette. Is that something you -- you said 9 I'm handing you now?
10 earlier these are all things you reviewed in 10 (Whereupon, Shaffer Exhibit
11 preparing your report. What was it about that 11 Number 13 was marked for
12 document that you relied on? 12 identification.)
13 A. We were looking at how they 13 A. Absolutely not. It's completely
14 collected information on what was considered to 14 been taken out of context. I have no idea where
15 be the standard project hurricane, how was that 15 this came from. It used to belong in the
16 constructed, what -- where did the data come 16 document that --
17 from, and what we have been able to determine is 17 EXAMINATION BY MS. MILLER:
18 that the reason, probably, why flooding would 18 Q. Do you know what -- so, you don't
19 have been reduced by 80 percent had MRGO not been 19 know what document it used to go with?
20 dug and not allowed to widen is because the 20 A. No.
21 standard project hurricane went over the existing 21 Q. Okay.
22 wetlands of the area. That was built for the 22 A. Again, when we looked at land loss,
23 intact system rather than the system that had all 23 we wanted to pull in all the available work that
24 fallen apart. 24 had been done and look for consistencies and
25 Q. So, in your understanding of that 25 discrepancies.
Page 303 Page 305
1 design memorandum, it includes an analysis of the 1 Q. Okay. So, this is something you --
2 wetlands. Is that right? 2 do you think you looked at this document during
3 A. Part of the model is trying to 3 that process?
4 determine how big the waves are going to get, so, 4 A. I have no idea. I came across that
5 how much fetch is there in the system. Well, 5 last night and I had no idea where it came from.
6 now, there's a tremendous amount of fetch in the 6 Like much of the bottom of the pile, I had never
7 system and that fetch did not used to exist. 7 even seen before. I had no right to bring that
8 Q. Okay. And nothing about that -- you 8 pile in.
9 reviewed that in preparing your opinions for this 9 Q. You certainly had a right to bring
10 case, but you didn't end up referencing it in 10 whatever you liked --
11 your report; is that right? 11 A. Well, when you go to bed at 1:00 and
12 A. Correct. 12 get up at 4:00, you don't think that much at all.
13 Q. Okay. And those opinions regarding 13 Q. This stack that I'm handing you now
14 standard project hurricane, to the extent someone 14 is a bunch of what appears to be legal documents,
15 has drawn conclusions about that, that's not your 15 or documents filed with the court in this
16 area of expertise; is that right? 16 litigation. Are those things that you have
17 A. No, but it allows us to compare 17 reviewed?
18 Scenario 1 and compare Scenario 2-and to 18 A. Yes. Yeah, this is great stuff.
19 understand why Scenario 2-C reduced flooding by 19 MR. MEUNIER:
20 80 percent. 20 That's an objective opinion.
21 Q. And by "us," you mean the team of 21 EXAMINATION BY MS. MILLER:
22 experts -- 22 Q. Can I see those again? I'm sorry.
23 A. Correct. 23 There was one particular thing. Okay. So, just
24 Q. -- experts other than yourself, 24 for the record, I don't need to introduce these
25 experts whose area of expertise that 25 as exhibits, but it's the plaintiffs' statement
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1 of uncontested facts filed on October 22nd, 2008, 1 this résumé -- or CV?
2 a Declaration of Pierce O'Donnel, dated October 2 A. There's probably some new ones. I
3 22nd, 2008, and Plaintiffs' Memorandum of Points 3 tend to get stuff out about every six months.
4 and Authorities in Opposition to Defendants' 4 Q. I noticed on here that you've listed
5 Motion For Partial Summary Judgment dated October 5 your undergraduate GPA excluding freshman year.
6 22, 2008. And then the fourth one is titled NEPA 6 A. Yep, and no one has ever questioned
7 Mandates and Violations and is a chart. Have 7 it in a job or interview or otherwise. Everybody
8 you -- 8 agrees that -- I surfed every day as a freshman.
9 A. That's one of the new ones. 9 Q. Sounds like a good time.
10 Q. So, you've not reviewed this? 10 A. I almost flunked out of school. I
11 A. There's that one little circled 11 had an academic scholarship and it took me three
12 black mark. I haven't even turned the first 12 months to lose it. I lost all of it. I was
13 page. 13 supposed to maintain a 3.5 and I got a 2.01. Do
14 Q. Okay. Since this document that Dr. 14 you see why I took it off?
15 Shaffer does not remember where it came from has 15 Q. That was your freshman year.
16 numbers, it's titled Table 1, Summary of 16 A. Otherwise, it's a 3.89.
17 Estimated Habitat Loss from MRGO Construction and 17 MR. MEUNIER:
18 Erosion By Mapping Unit. 18 It's great to be young in
19 A. Let me look at the totals, and I 19 Santa Barbara.
20 might actually -- because there's only about five 20 EXAMINATION BY MS. MILLER:
21 of these things. Mapping unit. See, one 21 Q. A lot of people can probably relate
22 thing -- oh, this must be the canal itself, spoil 22 to you on that experience.
23 channel, erosion -- none of these numbers stick 23 A. I still surf in Santa Barbara all
24 out as -- as belonging to anything. I 24 the time.
25 honestly -- I know we didn't use this because I 25 Q. Do you have -- you've mentioned
Page 307 Page 309
1 would have -- had we used this, it would be 1 Sarah Mack a number of times in this deposition.
2 referenced. It just is in that pile for some -- 2 Is she an employee of yours?
3 this may not have had anything to do with this -- 3 A. She's an employee of the team and
4 with anything. If it had been used, I would have 4 she has worked for several of the team -- several
5 definitely referenced it, though. 5 of the different teams.
6 MR. MEUNIER: 6 Q. Do you know what -- who her employer
7 Kara, we'll make you a copy, 7 is other than the group for this litigation?
8 but I don't see the reason to 8 A. She just finished a Ph.D. at Tulane
9 attach it to the deposition. He 9 and she previously worked for the sewer and water
10 doesn't know what to say about it. 10 board of New Orleans.
11 MS. MILLER: 11 Q. Okay. So, she doesn't currently
12 Okay. 12 work with either you or Dr. Day; is that right?
13 EXAMINATION BY MS. MILLER: 13 A. We -- we are -- we all work
14 Q. Yesterday, Dr. Day brought a 14 together. Yeah. We're putting together a
15 revision to his CV. Did you bring anything like 15 million dollar million carbon sequestration
16 that with you? 16 proposal right now.
17 A. Mine is fairly updated. I prefer to 17 Q. She's not affiliated with either of
18 have very short CV and just put down my 18 your universities?
19 publications and my $7 million of research grants 19 A. No.
20 and, so, I don't list all my students and all 20 Q. Okay. Are there other people who
21 that sort of thing, but that -- that could be 21 have worked with you on your reports that we
22 updated. I've probably got a few more 22 haven't yet discussed?
23 publications now, a few more grants. 23 A. No. Oh, my graduate students and my
24 Q. So, you -- your list of 24 research associate. For instance, when you flip
25 publications, you think, may not be current in 25 a coin four times to put a single tree on a map,
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1 that's a great activity for a brand-new graduate 1 pleasure.
2 student because it teaches them that 99 percent 2 THE VIDEOGRAPHER:
3 of research is grunt. So, that was a wonderful 3 Off the record.
4 opportunity for Chris Lundberg. 4 (Whereupon, a discussion was
5 Q. Okay. But Sarah Mack is the person 5 held off the record.)
6 who has been helping you with substantive 6
7 matters? 7
8 A. The primary. 8
9 Q. And is she paid by you to do that or 9
10 is that through the plaintiffs' attorneys? 10
11 A. Plaintiffs' attorneys. 11
12 Q. Okay. Do you have an estimate of 12
13 the total number of hours you've worked on this 13
14 litigation? 14
15 A. A lot. Probably less than almost 15
16 anyone else, though, because I'm a full-time 16
17 professor, and I have a huge research program. 17
18 So, I only work on this when I absolutely have 18
19 to. I just don't have time. I only work on it 19
20 during the weekends and at night. 20
21 Q. So, are you able to estimate the 21
22 total number of hours? 22
23 A. After taxes, I can do money better 23
24 than hours, but I think it's something like 45 24
25 grand, which, I think, is really low compared to 25
Page 311 Page 313
1 everybody else. 1 WITNESS' CERTIFICATE
2 Q. Okay. 2
3 MS. MILLER: 3
4 I don't have any other 4
5 questions right now. I do want to 5 I, GARY P. SHAFFER, Ph.D., the
6 state, though, for the record that 6 undersigned, do hereby certify that I have read
7 the supplemental expert report, we 7 the foregoing deposition and it contains a true
8 only received yesterday, and may 8 and correct transcript of the testimony given by
9 object to that being admitted and 9 me:
10 also may seek, you know, the 10
11 opportunity to ask more questions 11
12 about that report since we haven't 12 ( ) Without corrections.
13 had an opportunity to review is 13 ( ) With corrections as reflected on
14 it. 14 the errata sheet(s) prepared by me
15 MR. MEUNIER: 15 and made a part hereof.
16 And we'll respond to 16
17 appropriate motion practice on 17
18 admissibility and on your right to 18
19 continue to question the witness 19
20 about it. 20
21 MS. MILLER: 21
22 Thank you very much, Dr. 22 GARY P. SHAFFER, Ph.D.
23 Shaffer. 23
24 THE WITNESS: 24 DATE
25 You're welcome. It was a 25

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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 GARY P. SHAFFER, Ph.D., after having
9 been duly sworn by me upon authority of R.S.
10 37:2554, did testify as hereinbefore set forth in
11 the foregoing pages; that this testimony was
12 reported by me in the stenotype reporting method,
13 was prepared and transcribed by me or under my
14 personal direction and supervision, and is a true
15 and correct transcript to the best of my ability
16 and understanding; that I am not related to
17 counsel or the parties herein, nor am I otherwise
18 interested in the outcome of this matter.
19
20
21 CAROL VALLETTE SLATER (CCR 78020)
CERTIFIED COURT REPORTER
22 REGISTERED PROFESSIONAL REPORTER
23
24
25

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


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decision-making 136:8 148:8 256:4,8,13,15 depicting 107:13 describes 62:10


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261:11 264:21 206:21 150:18,21 151:18 describe 22:25 297:7 302:17
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133:20 134:9 248:20 255:2,23 171:3 284:23 296:15 144:3 146:6,7,10

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


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146:12,18 147:5 dimensions 156:4 disk 21:11,13,21,21 301:11,17 305:14 241:2,14 242:17
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155:12 157:15 discussions 218:16 236:11,13 300:15 236:24 240:6 237:5,15 238:6,23

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drew 234:17 302:10 either 19:13 24:22 280:25 310:12,21


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DYER 3:3 ecosystem 39:6 276:22 278:21 133:2 139:3 308:7 311:1
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(504)525-1753 HUFFMAN & ROBINSON, INC. (800)749-1753


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EXAMINATION 4:22,24 5:4,6,7,9 243:21 311:7 F fast 162:1


4:3 7:22 13:13 15:18 16:1 84:5,9 expertise 35:15 face 219:17 fax 229:21,21 234:8
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79:24 82:22 86:13 135:9,20 139:18 experts 105:3 252:18 260:13 234:13
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126:3 129:16 166:14,16 170:9 explain 19:22 33:9 factors 70:3 71:4 278:14 287:5
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260:23 261:15 297:2,6,7 304:10 288:24 155:13 182:19 211:2,3 237:17
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excluded 186:14 22:23 65:3 83:5 ex-student 115:4 farmland 107:17 107:1 108:1
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4:13,15,16,18,20 195:19 196:8 fashion 229:21 144:13,16,16,17

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


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154:16 164:14,22 309:8 flip 140:11,13,15 foregoing 313:7 172:3 207:15,16


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finding 270:20 207:11 242:24,25 follow 59:14 113:2 format 134:11 274:2,20 277:9,10
finds 172:16 243:6 269:11 204:15 222:9 139:11 278:22 279:2
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218:12 219:14,15 280:11,15 282:15 190:20 209:21 63:10,11 levees 41:25 42:5,9
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228:14,25 229:3 label 261:16 226:2 262:3,7 leads 70:25 159:9 70:19 103:18

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177:7 179:13 252:18 308:4 locate 112:19 184:8 153:18 164:17
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238:21 239:1,4,5 216:19 98:16 209:9 260:7 69:4 77:3,17,17 188:15 189:20
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68:7 71:18 148:19 128:4 144:20,21 location 13:11 104:7 107:7,8 264:5 275:18
172:16 185:18 144:24 163:2 112:13 163:19 113:11 115:10 276:11,11 279:16
levels 262:10,12 212:20,21 214:15 173:1 238:10,17 119:5 131:6 293:11 295:4,15
library 22:14 litigation 1:4 7:6 249:25 276:5 139:24 142:3 296:10,24 300:14
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light 262:1 298:9 20:19 22:18,22 locations 172:12 150:13 164:15,16 looks 10:15 12:13
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250:21 251:11 85:14,22 86:19 log 294:8 169:19 171:21 117:14 154:12,17
255:11 88:19 99:25 logged 194:16 188:24 196:17 165:6 167:10,11
lightning 120:3 100:20,23 110:12 195:8 196:13 198:1 220:17 169:3 170:1 200:9
liked 305:10 159:14 160:3 logging 28:13 222:13 225:13 207:18 208:23
limit 173:25 191:3 194:1 190:11,13,16,20 230:2 248:5 209:8 224:6 246:4
limited 66:8 96:6 206:25 215:8 192:11,18,21,25 249:21 250:24 246:25 247:4
126:21 223:2 234:16 193:1,7 194:7,8 251:13 253:20 250:15,22 251:2
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125:22 238:14 309:7 310:14 196:6,21,22 197:6 265:20 266:11 258:15 259:4
242:8,10,11 243:3 little 15:6 35:24 197:9,18,24 198:3 273:9 275:11 261:13,18 264:15
252:3 254:4 37:21 73:8 91:18 198:19,21 199:6 280:3 290:24 264:25 269:3
258:19 266:15 102:14 107:15 199:16,24 200:6 291:5 292:1 299:8 270:22 271:1
289:15 290:6 108:25,25 109:17 291:11 292:5 304:24 306:19 275:9 277:19
291:13,22 295:20 113:11 126:25 293:13,18,21,24 looked 13:2 14:9 289:6,6,7 290:21
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265:10,16 267:6 167:13 170:7 295:7 72:1 85:7 99:14 loose 230:16
278:14 299:11 175:5,16 179:8 logic 134:17 141:10 100:13,15,18 lose 180:6 308:12
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277:23 187:22 190:22 logs 198:15 106:17 107:4 57:18,19,22 79:8
lines 195:24 261:23 198:2 200:3,4 long 10:10 11:1 110:13 112:25 110:14 115:22
296:13,14 210:21 216:18 30:12 31:23 32:5 114:25 115:21 173:16 189:12
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46:5 47:21 54:11 Livaudais 217:10 120:16,18 121:17 226:1,18,19,21 306:17
54:11,18,20,21,23 219:15 148:13 159:25 239:7,13 246:18 lost 53:24 151:25
113:23 184:25 live 26:20 27:11 173:18 180:19 247:22 276:21 152:2,6,8,14
218:22 219:1 30:20 42:16 118:4 181:19 217:20 281:5 283:1 291:1 175:12,15 249:3
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61:19 65:7 67:11 216:1 219:9 191:13 197:12 285:19 292:17 marsh/cypress
81:4,6,9,15,19 228:11,14,18 199:13,19,22 293:11,18 297:2 168:13
82:10 85:15 89:12 309:1 310:5 200:1,5 205:14 304:11 martians 197:1
90:15 110:25 macro 36:13 207:8,12 208:5 marking 15:16 Mashriqui 212:15
113:19 117:4 macroscopic 33:12 269:11 284:24 115:12 192:5 212:18,24
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159:9 160:5 main 31:20 109:24 286:13 292:8,11 marks 170:3 42:12
163:15,25 176:8 184:6 190:19 293:14 297:2 marry 61:6 master 62:12
179:5 186:6 194:10 261:20 298:5 309:25 marsh 24:22,23,23 match 46:20,23
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196:12 197:13 maintenance 24:15 119:22 136:4 36:9,15 39:12 188:14 190:1
198:8 208:13 27:15 88:7 137:23 40:24 76:11,16,19 272:9
212:25 240:21 majority 155:2 mapped 199:3,5 76:21 77:10,23,24 matches 272:14
282:19 302:7 168:9 283:1,21 297:15 90:9,10,11,12 matching 50:10
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103:13 119:18,25 204:16 205:15 mechanism 52:12 method 223:7 Miller 2:12 4:4
127:22 130:12 211:20,25 212:1 medication 9:9 314:12 7:22,25 13:13,25
131:23 132:24 212:11 213:18 medium-size 204:1 methodology 79:11 14:13,21 15:10,13
134:2 136:22 218:7 220:13,14 meeting 9:19 18:6 methods 39:6 15:23 17:3,9
144:24,25 147:11 221:12 223:24 18:7,9,25 19:5 MEUNIER 1:20,20 35:10 54:14 59:7
148:9,11 149:4 225:7 228:16 125:13 193:2,22 125:25 129:10 59:13 65:23 73:13
153:20 154:1,7,12 232:11 237:25 meetings 51:9,11 131:10 157:12 73:18 79:24 82:22
161:21 162:13 238:13,19 239:4 88:22 218:13 161:13 163:8,21 86:4,11,13 89:1,5
164:12 175:5 242:2 244:15 219:19 220:8 165:22 166:19 98:19 99:5 110:2
176:6 226:7 227:5 247:19 249:8 Megonigal 128:5 167:1 186:20 117:13 123:7,13
300:22 301:4,9 250:15 252:3 128:11,16 131:17 188:12,19 189:17 126:3 129:4,16
maximum 138:24 264:19,22 266:15 132:22 133:25 189:23 191:24 131:5,12,14
147:2 276:9,13 277:11 153:20 196:24 220:2 135:12,14 140:1
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154:19 155:7 297:18,23 299:6 239:11 231:5,17,21 233:2 161:17 163:17,23
156:2,18,25 159:7 299:18 303:21 memo 86:2 233:14 234:25 166:4,22 167:3,5
160:13 meaning 256:17 memoranda 85:20 235:9,17 244:1,22 186:17 187:3
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24:20 26:1 32:9 138:20 139:3,8 11:23 12:25 86:6 263:9 266:5 267:4 220:6 222:20
33:10 34:8 38:10 143:20 145:2 88:25 302:7 303:1 267:12,20,24 227:3 230:12,17
38:18 39:24 40:12 146:18 179:16 306:3 271:3,8 272:2,17 231:14,19 232:19
41:24 46:19 47:12 235:6 299:7 memory 126:1 274:14,25 279:25 233:12,16 234:14
50:15 56:14 60:3 300:25 mention 262:18 283:4 284:1 236:6,8 244:7,11
63:22 64:11 65:1 measurable 178:7 mentioned 41:7 297:24 301:24 244:14 245:2,6
65:2 66:7 68:15 measure 74:12 66:18,20 96:24 305:19 307:6 248:17,21 252:13
68:22 69:8,10,21 91:12 132:11 103:13 119:11 308:17 311:15 252:16 258:8,17
70:3 74:14 76:1 146:7 148:22 159:8 160:16,23 Meunier's 163:18 260:15,23 261:15
76:13 78:11 79:13 149:1 162:8 279:8 183:5 187:5 228:6 Mexico 43:10 263:11,17 266:7
80:17 86:18 87:1 measured 140:6 247:5 249:12 microbe 26:21 267:7,14,22 268:4
87:17 100:20 148:21,21 149:18 299:20 308:25 microscopic 33:12 268:6,17 271:6,11
101:2,7 102:11,13 178:22 201:14 mesic 41:9 mid 204:11 272:5,12,19
104:15 115:23 202:12 212:10 mess 249:25 293:8 middle 270:6 276:1 274:18 275:4
122:11 123:20 214:8,19 222:22 messed 221:18 middle-ish 276:1 280:5,10 283:11
128:22 130:17 measurement met 7:25 88:18 mid-story 119:22 284:3,14 285:23
132:8,16 133:4,9 207:17 209:3 98:2,6 125:4 136:1,2,15,20 292:21 298:3
136:9,17,18 210:7 214:4 219:16 137:8,22,24 141:5 300:4,13 301:20
141:14 143:18 242:14 metals 25:1 27:16 167:23 302:4 304:17
144:14 146:15 measurements meteorological mid-1950s 216:13 305:21 307:11,13
147:3 149:23 74:15 201:4 202:9 262:10 263:1 mid-2000s 83:13 308:20 311:3,21
150:22 151:12 208:15 209:17 meter 201:9 210:15 mile 198:25,25 millimeters 207:23
159:21 163:1,2 214:21 221:4 224:2 200:10,10,11 207:24,25,25
169:5 171:5 178:5 measuring 74:14 meters 140:18 miles 26:16 116:4 million 46:16 65:22
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256:24 292:23 19:13 125:14,23 151:15 154:9,24 157:18 265:16,17 41:8,11 42:20
minutes 190:9 125:24 126:5 155:3 158:5 164:5 narrowed 281:4 51:23 79:14 80:15
mire 69:13 152:19 174:24 177:3 narrowing 281:8 200:18 205:20
miserably 210:24 money 46:14,17,25 178:4,7,8,17,19 National 49:10,13 219:10 241:25
mislabeled 188:10 57:13 60:17 65:20 186:8 204:20 49:20 149:12,15 252:1 271:15
missed 146:17 310:23 206:23 207:5 natural 40:2 41:5 297:12 305:24
211:2 293:22 money's 60:5 213:10,13,19,22 41:17 49:8 50:1 needed 21:24 64:16
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187:18,20 188:6 monoculture 78:14 235:13 237:5 140:23 186:15 241:9
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34:12 40:16 41:25 months 253:16 241:9,11 242:5,5 273:11 289:23 232:3
42:25 43:18 68:6 308:3,12 242:22 246:5 294:20 negative 27:19
68:18 107:14 morning 7:23,24 251:25 252:8 naturally 174:8 29:19
162:17 177:6 18:17 134:14 262:4 269:16 nature 171:18 negligence 64:24
misunderstanding 189:1 229:20 302:19 306:17 NCS 49:9 neighborhoods
95:4 267:19 231:1 233:18 MRGO's 55:18 near 42:18 69:5 39:18,21,23 171:7
misunderstood 236:13 219:21 113:1 150:3,6 171:14
236:9 morphed 60:22 mud 67:11 69:13 222:10 neither 21:10
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mitigation 56:8 285:21 293:4 Mugu 37:11,11 nebulous 27:18 never 12:10,10
57:9,13,17 58:6 moths 30:19 multiple 262:8 32:15 181:9 64:18 96:7 164:5
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mixture 116:24 move 81:9 140:18 multivariate 35:18 262:5 264:19 nevertheless
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212:4,4 214:16 250:7 M-U-G-U 37:11 NED-2 166:23 17:21 24:14 36:3
215:1 240:9 movement 8:25 NED-275 166:25 39:1 65:7 81:5
241:25 242:13 116:2 N 248:1 88:4 150:8 159:20
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modeled 210:23,24 59:18 69:3 174:14 289:16 4:19 286:19,21,24
modeler 127:7 MRGO 11:5 25:12 nailed 211:21 NED-275-000000... 306:9 308:2
modelers 124:5 25:19,20,23 26:1 name 7:12,25 9:23 4:21 309:10
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nine 210:15 135:10,23 136:12 oaks 114:18 118:9 occurred 18:6 58:10 60:18 61:2
Ninth 171:17,19 136:13 138:3,5,14 118:10,10,21 98:10 196:21 61:20 62:14 63:10
NMFS 49:10 138:21 139:22 168:6 257:9,14 243:14 246:18 66:11 67:17 68:3
NOAA 49:9,10,14 140:7 141:14 261:12 occurrence 197:6 69:25 71:21 75:22
Nods 26:25 138:1 145:9 165:6,24,24 oath 6:23 8:11 occurring 64:6 76:20 77:1,2,15
nominated 45:11 166:17,20,24 object 16:5,23,25 71:6,11 78:6,16 79:13
45:21,24 55:22 184:22 187:9 35:5 53:23 65:18 occurs 190:18 80:12,25 81:21
nominating 47:9 188:24 191:18,21 73:4 79:20 85:25 193:1 294:9 82:23 83:17,25
nomination 45:14 191:21,22 201:18 86:2,10 109:19 ocean 121:3 211:15 84:11,15,20,24
52:21 216:19 217:4 220:3 267:5 October 10:14 85:3 86:12 87:4
nominations 45:22 242:1 244:4,5 297:25 311:9 306:1,2,5 91:13 92:18 95:8
nondisclosure 247:25 248:6,7,13 objection 17:7 offer 284:7 95:18 97:13 98:11
236:5 249:18,19 253:12 157:13 161:14 offered 24:8 99:20,24 100:3
nonhealthy 154:4 253:13 254:10 163:9 222:18 office 2:2,7,13 3:4,5 101:1,11 103:22
nonissue 195:21 256:22 258:5,13 283:5 7:7 105:6,9,12,18
nonpoint 39:17,22 259:7,8,8,9 260:1 objectionable officer 314:6 106:2,7,10 107:6
39:24 70:10 175:6 260:5,9 261:5,8 267:9,10 offices 1:11 107:18,21,25
nonprintable 21:15 263:4,7,10 268:8 objections 6:12 officially 10:14 108:14,15,24
north 43:7 112:16 268:11 272:3,14 objective 50:24 officiated 6:23 109:13 110:3,7,10
140:14 174:3 275:1 280:1 52:24 305:20 off-site 58:8,9 110:16 114:16,16
204:23 208:17 285:19 292:17 objectively 167:18 oh 44:15 49:21 114:24 115:9,23
265:3 269:13 302:7 304:11 observations 90:3 60:24 105:9 116:6,16 117:23
275:18 276:11 309:1 310:13,22 217:4 248:11 107:19 125:23 118:3 119:3 124:4
288:3,5 289:13 numbered 254:10 261:20 143:4 146:17 124:8,22 125:1,12
291:23 295:17,19 numbers 74:13 observe 91:8 94:5 165:9 166:25 125:23 126:25
northeast 92:19 137:14,15,19 119:24 254:15 183:7 189:1 228:2 127:4,4,15 128:19
northern 205:10 144:20 188:6,14 255:1 257:3 261:6 245:10 259:20 129:25 130:4,8,15
256:18 262:18 189:15,25 201:4 263:22 265:8 269:9 272:18 131:4,13 132:2,6
295:8 202:24,25 215:18 268:21 296:7 273:9 278:2 132:9,13,20 133:1
northwest 264:5 288:18 306:16,23 observed 32:23 287:21 290:14 133:10,16,19,23
northwestern nutria 28:15 29:23 76:2 77:6 90:9 295:15 297:10 134:3,10,23 135:2
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147:18 148:22 wetland 10:2,4 181:6,17 186:1,7 White's 44:17 WOODRUFF 2:18
157:16 159:21 26:3 28:12 40:8 186:12 190:15 Wicker 13:11 woody 52:3 63:24
161:25 163:13 46:1 53:3 57:14 191:1,7,12,15 wide 241:12 88:15 100:15
167:20 177:16 69:6,8,11,12,13 192:9,11,17,22 widen 65:10 88:8 240:13
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wearing 270:25 28:8 31:7,9,10,11 226:18 235:15 WILKINSON 1:7 97:25 101:4
website 111:1,1,24 31:14 34:2,13 249:4,13 254:16 William 128:5 157:22 158:14
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115:11 38:15,18,20 40:17 287:1 293:25 wind 158:15 212:9 162:12 167:7
Wednesday 19:13 40:23 41:19 43:14 302:22 303:2 264:8 185:21 220:1

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1947 214:23 2005 111:4 112:5 29 215:18 297:3 298:7 6th 253:15
1950 178:9 115:12 156:8 29th 1:12 7:11 4:00 305:12 60 253:9
1950s 4:14 72:1,11 2006 226:14 293 5:7 40 46:16 92:9 60s 96:22 106:22
72:23 154:9 2007 23:7,10,18,21 143:24 202:7 600 269:10 275:17
216:13 284:20 84:18 105:9,14 3 220:17 276:14,16,23
1958 252:10,21 111:18 114:1 3 4:10 15:25 84:11 40s 196:17 60267 3:5
253:6,15 130:17 226:14 92:5 139:18,22 400 224:1 61 253:9
1960s 4:15 2008 10:14 11:9,18 142:19 143:18 41 216:20 610 1:17
1961 252:19,21 17:17 22:5 84:6 144:8,13,16 241:9 42 216:18 625-meter 74:11
253:6 87:6 91:1 98:12 241:11 286:5 42,000 249:15,15 202:12
1963 214:21 105:7 106:8 3,000 24:17 45 310:24 625-square-meter
1973 63:24 110:17 306:1,3,6 3.5 308:13 48 74:11 127:21 127:21
1982 13:12 90:15 2009 1:13 7:11 46:6 3.89 308:16 132:23 133:10 640 200:12
90:17,22 91:1 2050 51:5,18,19,25 30 147:19 242:3 49 102:9 650 24:16 144:16
1986 37:17,19 52:4,11,17 63:18 30s 96:22 158:6 241:11
1990 38:1,3,8,13 63:21 64:12 30th 11:9 5 67 139:8
39:3 213 188:18 30-foot-tall 147:22 5 3:15 144:17 68 178:16 179:6
1991 47:8 51:7 55:5 22 306:6 300-acre 48:4 191:19 200:15
1992 227:14 22nd 306:1,3 304 5:9 5-A 4:13 191:21,25 7
1998 51:21 220 136:10,11 31 279:22 192:5 207:11 7 4:4,20 103:25
1999 11:5 45:12 23 274:23 32 292:8 284:16,18 104:20 105:13
100:14 175:14 2300 2:18 320 111:20 5-B 4:15 191:22 106:11 108:1
24 46:4 34 210:25 192:7 198:21 199:2
2 24,150-acre 26:2 35 271:16 280:23 5-C 4:16 191:22 200:17,18 220:17
2 1:5 4:8 84:5 240 136:12 139:3,5 281:5 192:7 221:12,13 225:11
110:17 112:3 141:14,14 36-foot 88:3 5.99 147:1 256:22 259:8,19
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205:12 239:5 258 4:18 4 209:14 7:00 284:2
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2,000 24:16 260 4:20 144:16 154:16 106:22 148:18 113:23
2,500 145:3 261 4:22 164:22 166:15,17 196:17 216:15 70s 96:22
2-and 303:18 263 4:24 170:9 184:18 235:8 70112 3:9
2-C 303:19 266 20:20 21:3 204:20 229:3,5 50-year-old 148:3 70113 1:12,17 2:3
2.01 308:13 22:11,18 100:1,3 249:19 253:13 51 102:8 70160-0267 3:6
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2.8 292:20 268 5:4 4,000 178:17 203:3 70163-2800 1:22
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200-year-old 28 215:11 292:15,19 56 175:13 178:16 78 175:13,14
145:18 28th 3:8 4.3 4:15 191:14 178:16,16 179:6 178:17 179:1
2000s 4:17 28,000 24:9 26:12 192:7 284:17 248:1 78020 314:21
2003 83:15 93:23 200:11 4.4 4:17 191:14 58 178:16 179:6
2004 111:3,10,24 249:14 192:7 284:17 8
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108:1 292:20 258:7,10,13 261:4,8

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74:2 206:22
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94 12:2
97 151:5
99 310:2

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