JX 0098

DAY, JR., DR. JOHN W.
11/19/2007
Page 1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
IN RE: KATRINA CANAL CIVIL ACTION

BREACHES CONSOLIDATED
LITIGATION NO. 05-4182 "K" (2)
JUDGE DUVAL
MAG. WILKINSON
PERTAINS TO: Robinson

No. 06-2286
Deposition of DR. JOHN W. DAY, JR.,

2237 Energy Coast and Environment Building,
LSU-Coastal Ecology Institute, Baton Rouge,
Louisiana 70803, taken in the offices of
Lambert & Nelson, P.L.C., 701 Magazine St.,
New Orleans, Louisiana on Monday, the 19th
day of November, 2007 at 9:07 a.m.
APPEARANCES:
ANDRY LAW FIRM

(By: Jonathan B. Andry, Esquire)
(By: Meghan Hays, Law Clerk)
610 Baronne St.
New Orleans, Louisiana 70113
(504) 586-8899
Attorneys for Plaintiffs,
Norman Robinson, et al JOINT EXHIBIT
JX-0098
Johns Pendleton Court Reporters 800 562-1285

11/19/2007
Page 2
1
APPEARANCES (continued):
2
3
4 U.S. DEPARTMENT OF JUSTICE
(By: Kara K. Miller, Esquire)
5 (By: Traci Colquette, Esquire)
P.O. Box 888
6 Benjamin Franklin Station
Washington, D.C. 20044
7 (202) 616-4289
Attorneys for Defendant,
8 United States of America
9
10
11 ALSO PRESENT:
12
13
LABORDE & NEUNER
14 (By: Ben L. Mayeaux, Esquire)
One Petroleum Center, Suite 200
15 1001 West Pinhook Road
Lafayette, Louisiana 70503
16 (337) 237-7000
17
18
19 CHAFFE McCALL, L.L.P.
(By: Parker Harrison, Esquire)
20 Suite 2300
1100 Poydras St.
21 New Orleans, Louisiana 70163-2300
(504) 585-7000
22
23
24
25

11/19/2007
Page 3
1 APPEARANCES (continued):
2
3
4 DUPLASS, ZWAIN, BOURGEOIS, MORTON,
PFISTER & WEINSTOCK
5 (By: Joseph E. Bearden, III, Esquire)
3838 N. Causeway Blvd., Suite 2900
6 Metairie, Louisiana 70002
(504) 832-3700
7
8
9
BURGLASS & TANKERSLEY, L.L.C.
10 (By: Kea Sherman, Esquire)
5213 Airline Drive
11 Metairie, Louisiana 70001
(504) 836-2220
12
13
14
LAW OFFICES OF F. GERALD MAPLES, P.A.
15 (By: Stephen M. Wiles, Esquire)
902 Julia Street
16 New Orleans, Louisiana 70113
(504) 569-8732
17
18
19
20
21
22
23
24
25

11/19/2007
Page 4
1 APPEARANCES (continued):
2
3
4
5
ALSO PRESENT:
6
7
Gary Paul Shaffer
8
Sarah Mack
9
10
11
12
Ken Hart, CLVS
13 Hart Video of Louisiana, L.L.C.
(866) 649-4278
14
15
16
17
18 REPORTED BY:
19
MARGARET MCKENZIE, CCR, RPR, CMR, CRR
20 Certified Court Reporter
21
22
23
24
25

11/19/2007
Page 5
1 I N D E X
2
3
4 EXAMINATION BY:
5
6 MS. MILLER.............................8
7
8 MR. ANDRY............................216
9
10 MS. MILLER...........................236
11
12
13 EXHIBITS:
14
15 Exhibit 1..............................18
16 Exhibit 2..............................25
17 Exhibit 3..............................39
18 Exhibit 4. ...........................81
19 Exhibit 5..............................87
20 Exhibit 6.............................183
21 Exhibit 7.............................193
22 Exhibit 8.............................211
23 Exhibit 9.............................217
24
25

11/19/2007
Page 6
1 S T I P U L A T I O N
2 It is stipulated and agreed by and
3 between counsel for the parties hereto that
4 the deposition of the aforementioned witness
5 is hereby being taken under the Federal Rules
6 of Civil Procedure, for all purposes, in
7 accordance with law;
8 That the formalities of reading and
9 signing are specifically not waived;
10 That the formalities of sealing,
11 certification and filing are specifically
12 waived;
13 That all objections, save those as to
14 the form of the question and the
15 responsiveness of the answer, are hereby
16 reserved until such time as this deposition,
17 or any part thereof, may be used or sought to
18 be used in evidence.
19
20 * * * * *
21
22 MARGARET MCKENZIE, Certified Court
23 Reporter, in and for the Parish of Orleans,
24 State of Louisiana, officiated in
25 administering the oath to the witness.

11/19/2007
Page 7
1 VIDEOGRAPHER:
2 This is the videotape deposition of
3 Dr. John W. Day, Jr. This
4 deposition is being taken in the
5 matter of Robinson versus United
6 States, Case Number 06-2286. We're
7 at the Law Offices of Lambert and
8 Nelson located at 701 Magazine
9 Street in New Orleans, Louisiana.
10 Today's date is November 19, 2007.
11 My name is Ken Hart. I'm a
12 certified legal video specialist
13 with Hart Video of Louisiana. The
14 court reporter is Margaret McKenzie
15 with Johns Pendleton and
16 Associates.
17 Would counsel, please, introduce
18 themselves.
19 MS. MILLER:
20 My name is Kara Miller. I
21 represent the United States.
22 MR. ANDRY:
23 Jonathan Andry on behalf of the
24 plaintiffs.
25 MS. COLQUETTE:

11/19/2007
Page 8
1 Traci Colquette also here for the
2 United States.
3 VIDEOGRAPHER:
4 Would the court reporter please
5 swear in the witness.
6 DR. JOHN W. DAY, JR.,
7 Department of Oceanography and
8 Coastal Sciences, Louisiana State
9 University, Baton Rouge, Louisiana
10 70803, after having been first duly
11 sworn by the above-mentioned court
12 reporter, did testify as follows:
13 VIDEOGRAPHER:
14 Please begin.
15 EXAMINATION BY MS. MILLER:
16 Q. Good morning, Dr. Day.
17 A. Good morning.
18 Q. We met a few minutes ago. My name
19 is Kara Miller and I'm an attorney with the
20 Department of Justice. I represent the
21 United States in this action, Robinson versus
22 United States. Have you had your deposition
23 taken before?
24 A. Yes.
25 Q. Yes. So you understand then that

11/19/2007
Page 9
1 I'll be asking you questions and you are
2 under oath to fully and completely answer
3 those questions?
4 A. Uh-huh.
5 Q. And if you do not understand a
6 question or cannot hear my complete question
7 for any reason, please let me know;
8 otherwise, I'll assume that you've understood
9 the question. Is that okay?
10 A. Okay.
11 Q. Additionally, please make sure you
12 provide a verbal response to each of the
13 questions so that the court reporter can take
14 it all down. And also I will also try and be
15 careful not to talk at the same time that you
16 are speaking and, likewise, if you could make
17 sure if I finish the question before you
18 begin your response. Is there any reason
19 that you cannot testify today?
20 A. No.
21 Q. Have you taken any medications that
22 would impact your ability to testify?
23 A. No.
24 Q. Okay. If, for any reason, as the
25 deposition continues you realize that there's

11/19/2007
Page 10
1 a problem with your ability to testify
2 accurately, just let me know. And also, if
3 you need to take a break, we can do that.
4 A. Okay.
5 Q. Just let us know. I understand
6 from speaking with plaintiffs' counsel, Mr.
7 Andry, before this deposition began, that Dr.
8 Shaffer is also present. And we noticed your
9 deposition today rather than Dr. Shaffer's
10 because the plaintiffs have represented that
11 you would be their designated expert on this
12 report that was produced. If there are
13 questions today that you feel need to be
14 answered by Dr. Shaffer rather than yourself,
15 just let me know as we go along. Fine?
16 A. Okay.
17 Q. Okay. I guess to begin, if you
18 would state your full name for the record.
19 A. John Wilton Day, Jr.
20 Q. And are you currently employed?
21 A. I'm currently a Professor Emeritus
22 in the Department of Oceanography and Coastal
23 Sciences at Louisiana State University.
24 Q. Okay. What does the title
25 professor emeritus mean?

11/19/2007
Page 11
1 A. It means that I've retired and that
2 the department has given me the title of
3 Professor Emeritus. I am also receiving
4 part-time pay from the department.
5 Q. Okay. Do you continue to teach
6 there?
7 A. I'm not teaching. I'm doing
8 research.
9 Q. Okay. And what is your business
10 address?
11 A. The address of the university is
12 the Department of Oceanography and Coastal
13 Sciences, Louisiana State University, Baton
14 Rouge, Louisiana, 70803.
15 Q. As I said, we're here today for
16 your deposition because the plaintiffs
17 identified you as an expert witness. Have
18 you been retained by the plaintiffs?
19 A. Yes.
20 Q. And when did you first become
21 involved in this case?
22 A. It was, I think, late last year.
23 I'm not sure exactly, or early this year.
24 Q. So late 2006 or early --
25 A. Or early 2007. I don't remember.

11/19/2007
Page 12
1 Q. Okay. Do you remember who
2 contacted you?
3 A. I was contacted by some of the
4 other experts who told me about the case and
5 said that the plaintiffs' lawyers were
6 interested in talking with you and that's how
7 it started.
8 Q. Do you -- can you tell me which
9 experts?
10 A. I think it was Dr. Paul Kemp.
11 Q. And at the time Dr. Kemp contacted
12 you, do you know whether he had already been
13 retained by the plaintiffs as an expert?
14 A. I think so.
15 Q. Okay. And what did Dr. Kemp tell
16 you about the case at that time?
17 A. He -- he gave me a general overview
18 of what the case was about and indicated
19 where, you know, I might fit in in terms of
20 my own expertise.
21 Q. And after that, did you contact the
22 plaintiffs' attorneys?
23 A. I can't remember whether I
24 contacted them or they contacted me.
25 Q. Okay. And once you spoke -- I

11/19/2007
Page 13
1 assume at some point you then spoke with
3 A. That's right.
4 Q. Do you remember who you spoke with?
5 A. It might have been Mr. Bruno.
6 Again, I can't remember. There are a bunch
7 of them.
8 Q. Okay. And at that time, were
9 you -- is that when you were retained?
10 A. Yeah.
11 Q. And what have you been asked to do
12 in this case?
13 A. I've been asked to specifically to
14 consider the ecology of the cypress forest in
15 the area affected in that southeast area
16 below New Orleans here and what factors would
17 have affected their survival and mortality in
18 general.
19 Q. Okay.
20 A. And wetlands, more generally the
21 wetlands in that area.
22 Q. Okay. And what do you understand
23 the issues in this case to be?
24 A. Well, the issue that I'm dealing
25 with is the mortality of cypress swamps in

11/19/2007
Page 14
1 that area. And when I mean that area, I mean
2 southeast of New Orleans on the east side of
3 the river and what led to their mortality.
4 Q. Okay. Had you studied this issue
5 prior to being retained for this case?
6 A. Yes.
7 Q. I'll ask you a little bit more
8 about your background in a few minutes.
9 Yeah. I'll follow up on that in a few
10 minutes. Have you read the Complaint that's
11 been filed in this action?
12 A. I've read parts of it.
13 Q. What do you mean by parts of it?
14 A. Well, I've not read the whole
15 thing. It was provided to me and I looked at
16 it looking for the sections that might
17 pertain to what I would testify to.
18 Q. Okay. Do you recall what in the
19 Complaint pertained to what you might testify
20 to?
21 A. Well, it had to do with the impact
22 of MRGO on the wetlands of that area and a
23 lot of it came out of discussions with
24 attorneys and other experts, too.
25 Q. A lot of your understanding --

11/19/2007
Page 15
1 A. Yeah.
2 Q. -- of what --
3 A. Uh-huh.
4 Q. -- your understanding of the
5 Complaint?
6 A. Uh-huh.
7 Q. Okay. Have you read any other
8 documents that have been filed with the
9 court?
10 A. Yeah, I have.
11 Q. Which documents?
12 A. Well, there's a whole, there's a
13 whole list of them. I, you know, I could
14 give you the names of some of them. I
15 probably don't remember all of them, but
16 there's been -- it is my understanding there
17 has been an enormous amount of information
18 filed, and I've read mainly the parts that
19 pertains to vegetation issues and salinity
20 issues and that kind of thing.
21 Q. You mentioned there is a list. Is
22 that a list that someone provided to you?
23 A. We've been provided hard copies of
24 documents, CDs, documents and also -- yeah,
25 we have been provided with a long list. I

11/19/2007
Page 16
1 haven't read the whole list.
2 Q. If you can recall some of those
3 documents that you looked at, could you list
4 a few of them?
5 A. Well, there are the MRGO general
6 design memoranda about -- there are several
7 of those. There are a number of documents
8 about pre- and post-vegetation and salinity
9 of the area. And there -- you probably -- I
10 don't know, at least a dozen of those. There
11 are letters from agencies commenting on the
12 proposal to dig MRGO. There is the Team
13 Louisiana report. There is a report from --
14 in the late 1999, an EPA St. Bernard paper on
15 the causes of, the effect of MRGO in that
16 area. I've read a bunch of general
17 literature on cypress swamps and cypress
18 swamp ecology and wetland ecology in general.
19 There is a report by Coastal Environments, a
20 series of reports by Coastal Environments on
21 the St. Bernard area.
22 Q. What is Coastal Environments?
23 A. Coastal Environments, Incorporated
24 is a consulting firm in Baton Rouge and they
25 have conducted a fair amount of work for St.

11/19/2007
Page 17
1 Bernard Parish on this issue.
2 Q. Do you -- can you specify the time
3 period that that work has been conducted?
4 A. Well, it started back in the
5 sixties and seventies and I think has
6 continued even to the present. Coastal
7 Environments was involved, for instance, in
8 the 1999 report.
9 Q. Okay. So the things that you've
10 just listed, you -- did you say that those
11 were provided to you by plaintiffs' counsel?
12 A. A lot of them were. I mean, there
13 are also papers I've read just to refresh my
14 memory on ecology of wetlands, and
15 specifically cypress swamps in that area.
16 Q. And by that, you mean things you
17 located for your own research or prior
18 knowledge?
19 A. Yeah.
20 Q. Yes. Have you come to any
21 conclusions or developed any opinions about
22 the subject matter of this case?
23 A. I have.
24 Q. And I want to discuss those in
25 detail in a few minutes. For now, would you

11/19/2007
Page 18
1 briefly state the conclusions you've reached?
2 A. That construction of MRGO led to
3 increases in salinity in the area and
4 widespread mortality of cypress swamps and
5 freshwater marshes.
6 Q. Are there other opinions?
7 A. Well, those are the -- that's the
8 main opinion. There are a lot of minor
9 opinions I think you said you would get into.
10 Q. Okay. And you've prepared a report
11 that contains these opinions, is that
12 correct?
13 A. That's right. It is right here
14 (indicating).
15 Q. Okay. I'm going to introduce a
16 copy of it into the record.
17 A. All right.
18 MS. COLQUETTE:
19 Do you need a copy?
20 MR. ANDRY:
21 I have one.
23 Q. I'm showing you this document,
24 which I've marked as Exhibit 1. Is that the
25 report that you've prepared?

11/19/2007
Page 19
1 A. Yes. If -- I see the title sheet.
2 MR. ANDRY:
3 Miss Miller, could we do the -- for
4 the purposes of this deposition,
5 we've been identifying like Day --
6 MS. MILLER:
7 Like Day.
8 MR. ANDRY:
9 -- like Day 1. That way we don't
10 have multiple ones. And that way,
11 we can identify it by deposition.
13 Q. Sure. Okay. I will go ahead and
14 let you hold on to that copy during the
15 deposition just to make sure that we're --
16 A. Okay.
17 Q. -- discussing the same report.
18 A. Okay.
19 Q. If you could just flip through that
20 and confirm that that looks like the report
21 that you've produced in this case.
22 A. Yeah. It appears to be it.
23 Q. Okay. And does this report contain
24 all of the conclusions and opinions that
25 you've reached in this case?

11/19/2007
Page 20
1 A. Yeah.
2 Q. How long did it take you to
3 formulate your opinions?
4 A. For this report specifically?
5 Q. Yes.
6 A. We worked on this for two to three
7 months, I would say.
8 Q. And when you say we, who is that?
9 A. Dr. Shaffer and I (indicating).
10 Q. Okay. On page 2, your report
11 states that it is submitted with respect to
12 the 702C immunity issues. What do you
13 understand the 702C immunity issues to be?
14 MR. ANDRY:
15 I object to the form of the
16 question to the extent that might,
17 the way that you phrased the
18 question might call for him to
19 render a legal opinion.
20 But to the extent you can answer
21 that and you understand it, go
22 ahead.
23 THE WITNESS:
24 Whether or not the MRGO is a flood
25 control project rather than a

11/19/2007
Page 21
1 navigation project.
3 Q. I just want to make sure with the
4 objection that I understand your answer
5 correctly. You're saying that your
6 understanding of the 702C immunity issue is
7 that, is the question of whether or not the
8 MRGO is a flood control project?
9 MR. ANDRY:
11 question.
12 You can answer subject to the
13 objection.
14 THE WITNESS:
15 I really don't feel comfortable
16 answering questions about legal
17 issues. You know, I think I've
18 stated my understanding in a
19 general way, and so I would prefer,
20 unless you really want me to --
22 Q. Okay. I understand. Could you
23 just explain when you wrote in your report
24 that it was submitted with respect to a 702C
25 immunity issues, what did you mean by that?

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1 A. That that was the issue of Robinson
2 and that's what I was retained to be an
3 expert in.
4 Q. Okay. Behind tab 1 of the document
5 I gave you as Exhibit 1, there are several
6 photographs. There should be eight of them,
7 I believe. Were these part of the report you
8 prepared?
9 A. Yeah. Uh-huh.
10 Q. Okay. And your CV is also
11 included, is that correct?
12 A. I think so, yes. Yeah. Uh-huh.
13 It's a, it is a rather abbreviated CV, so,
14 anyway.
15 Q. Have you provided a more complete
16 CV?
17 A. I did.
18 Q. To the plaintiffs' attorneys?
19 A. Uh-huh.
20 Q. Okay. I just want to remind you to
21 try to make sure you use yes and no rather
22 than uh-huh.
23 A. Okay.
24 Q. So you did provide a complete CV to
25 the plaintiffs' counsel?

11/19/2007
Page 23
1 A. Yes.
2 Q. But that's not what starts on page
3 16 of your report?
4 A. No. This is a somewhat
5 abbreviated, well, much abbreviated. It
6 basically gives my basic educational
7 background and some key publications, recent
8 key publications.
9 Q. I note that it says "Selected
10 Recent Publications, 2001 to 2003."
11 Do you have publications more recent
12 than 2003?
13 A. I do.
14 Q. And those are not included on this
15 copy of your CV, is that correct?
16 A. No, they are not, not in this
17 particular one, but --
18 Q. Okay. Were those publications
19 listed on the CV that you provided to
20 plaintiffs' counsel?
21 A. Yes. Uh-huh.
22 Q. Okay.
23 MR. ANDRY:
24 It is my understanding for purposes
25 of the record that his full CV and

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Page 24
1 other information required by the
2 Federal Rules of Civil Procedure
3 were provided to the United States
4 when we made the expert designation
5 separate and apart from this.
6 MS. MILLER:
7 Okay.
8 MR. ANDRY:
9 And to the extent it's not, we'll
10 provide you with whatever that is
11 on his CV.
12 MS. MILLER:
13 Okay.
15 Q. Where this copy that starts on page
16 16 lists the selected publications, can you
17 explain how you chose what to include or
18 exclude here?
19 A. I think what I did, when I sent
20 them my CV, the full CV and this CV, that I
21 selected some recent publications to indicate
22 my expertise generally in this area. I've
23 done quite a bit of international work and I
24 think I excluded most of that from here.
25 Q. Okay. So from looking at the

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1 publications on pages 16 and 17, do those --
2 do those relate to the opinions in your
3 report?
4 A. Yes.
5 Q. I've marked this as Day 2
6 (indicating). Do you recognize that page?
7 A. These were some of the references
8 we cited in our expert report.
9 Q. Okay. And is that your signature
10 at the bottom?
11 A. Yes. Uh-huh.
12 Q. Okay. I noticed that the same page
13 is on page 14 of the report, but it looks
14 like you had not signed it on page 14, is
15 that correct?
16 A. I guess, yeah.
17 Q. Do you recall when you provided the
18 signature page?
19 A. I was out of the country when this
20 happened. And so I signed a version of it,
21 scanned it and faxed -- sent it by,
22 electronically to the lawyers.
23 Q. Okay. Could you explain your
24 educational background?
25 A. I have a Ph.D. in Marine Sciences

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1 and Environmental Sciences from the
2 University of North Carolina. I received
3 that in 1971. And since that time, I've
4 carried out studies of wetland and coastal
5 ecology, both in the Mississippi Delta and
6 numerous other areas worldwide.
7 Q. Could you explain a little bit of
8 your employment history.
9 A. Well, in 1971 I accepted a position
10 at LSU and I worked at LSU until 2005. I
11 retired in the summer of 2005. Since that
12 time -- and I rose to the rank of full
13 professor. I think I got full professor in
14 1980. And then since my retirement, I've
15 been a Professor Emeritus up until the
16 present.
17 Q. Okay. And how would you describe
18 your area of expertise?
19 A. Coastal ecology, wetland ecology
20 and, more generally, marine and coastal
21 ecology.
22 Q. Have you published in each of these
23 fields that you've just mentioned?
24 A. Yes.
25 Q. Are there other areas or topics on

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1 which you have published?
2 A. Well, ecology is a very general
3 broad encompassing term, so it refers to the
4 natural functioning of ecosystems, so I've
5 published across a whole spectrum of topics
6 within ecology.
7 Q. Within the broad subject of
8 ecology, is there something more specific
9 that you have focused on?
10 A. Well, I've carried out studies of
11 hydrology, biochemistry, which is the
12 chemistry of coastal systems and other
13 wetland systems. I've studied the structure
14 and productivity and vegetation ecology of
15 plants, wetland plants specifically. I've
16 carried out studies on algae growing in
17 coastal waters. I've studied mangroves.
18 I've studied extensively human impacts and
19 coastland and wetland ecosystems. I've
20 carried out studies on use of models to gain
21 an understanding of the function of these
22 ecosystems and, to some extent, human
23 societal ecosystem and interactions.
24 Q. Could you -- what sort of models
25 did you mean when you just mentioned models?

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1 A. Models are computer -- mathematical
2 models, computer simulation models.
3 Q. And what have you, what have you
4 used models to simulate?
5 A. Well, you use models to understand
6 the functioning of natural ecosystems. You
7 use models to understand the impacts of human
8 activities. You use models to design optimum
9 management for natural ecosystems. We've
10 used them for all of those things.
11 Q. And again, when you say we, do you,
12 who do you mean?
13 A. The colleagues I've worked with. I
14 probably have 300 coauthors in all my
15 publications.
16 Q. Okay. The report indicates that it
17 was jointly prepared by you and Dr. Shaffer,
18 is that correct?
19 A. That's correct.
20 Q. And also included in the report
21 beginning on page 18 is Dr. Shaffer's CV, is
22 that correct?
23 A. Uh-huh. Yes.
24 Q. Can you tell me how you know Dr.
25 Shaffer?

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Page 29
1 A. I've known Dr. Shaffer since he was
2 a student in the Department of Oceanography
3 where he received his Ph.D. in 1986. I've
4 known him since then and we have collaborated
5 on a number of studies on ecology of cypress
6 swamps.
7 Q. Okay. Was he a student of yours?
8 A. No. I was not his professor.
9 Q. Okay. Could you explain how your
10 expertise differs from that of Dr. Shaffer's?
11 A. Well, there is quite a bit of
12 overlap. Dr. Shaffer is much more, much more
13 focused on specifically the, the specific
14 ecology of cypress trees in relation to their
15 environment. And I focus on somewhat on more
16 broader issues, but there is quite a bit of
17 overlap.
18 Q. By that, do you mean that Dr.
19 Shaffer has a more narrow focus to his
20 research?
21 A. No. I don't mean that.
22 Q. Okay. I did not mean to ask you to
23 say anything negative about Dr. Shaffer.
24 A. Ecology is a very collaborative
25 science and it is very common for scientists

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1 to work together, and so --
2 Q. Okay. So just within ecology, you
3 each have focus more specifically on slightly
4 different topics?
5 A. Yeah. Yeah.
6 Q. And Dr. Shaffer has focused more
7 specifically than you have on the cypress
8 trees themselves?
9 A. Yeah. I think you could say that.
10 Q. Okay. Can you explain how you and
11 Dr. Shaffer went about preparing this report
12 together?
13 A. I think actually, if my memory
14 serves me correct, I sought him out because
15 of his expertise in cypress swamp ecology.
16 And then working together, we developed an
17 outline of the major points that we thought
18 we would make in this report. And both --
19 each of us took responsibility for separate
20 sections and prepared the report.
21 Q. Could we go through the report and
22 would you show me which sections you took
23 responsibility for and which sections Dr.
24 Shaffer did.
25 A. "Swamps for Hurricane Protection,"

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1 I think Dr. Shaffer took the lead in that.
2 And all of this we both contributed, but he
3 would have taken the lead in that section.
4 And he would have been more, he would have
5 had more responsibility on saltwater
6 intrusion, although we both worked in that
7 very much.
8 Q. Okay. Just to make sure I'm
9 following you on the record --
10 A. This is the -- I'm using the
11 headings, headings. This is on page 4.
12 Q. So the first section you mentioned
13 was "Swamps for Hurricane Protection" and
14 that begins on page 3?
15 A. That's right.
16 Q. Okay. And Dr. Shaffer took the
17 lead on that, you say?
18 A. Yeah, but I hasten to stress that
19 this was a very highly interactive activity.
20 Q. Okay. And so then you went on to
21 the section that begins on page 4 --
22 A. Yeah. "Saltwater Intrusion," I
23 think he would have taken the lead on that.
24 "Development of the Mississippi Delta," I
25 would, I took the lead on that. And I took

11/19/2007
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1 the lead on "Delta Deterioration." I would
2 say we both contributed more or less equally
3 to "Coastal Forested Wetlands of the
4 Pontchartrain and Breton Sound Basins" on
5 page 10. Likewise on page 11, "Effects of
6 the MRGO Construction," this is a joint, And
7 "Conditions Prior to MRGO Construction." So
8 that's sort of generally outlines it.
9 Q. Okay. And with respect to actually
10 typing up the report, how did you divide that
11 work?
12 A. Well, I mean, we provided sections,
13 we wrote drafts. We probably went back and
14 forth at least a dozen times. And, you know,
15 so we ended up both of us commenting and
16 adding extensively to the whole report.
17 Q. Okay. Did you and Dr. Shaffer
18 discuss the materials that you reviewed in
19 advance of preparing the report?
20 A. Yes.
21 Q. And, I guess by materials, you
22 mentioned earlier that you had hard copies of
23 things, CDs and other materials, that were
24 provided by plaintiffs' counsel?
25 A. In -- in that case of experience we

11/19/2007
Page 33
1 can share.
2 Q. Okay. But with respect to the
3 actual documents related to this case that
4 you received from plaintiffs' counsel, did
5 you and Dr. Shaffer receive the same set of
6 documents?
7 A. Yes.
8 Q. And you said you do have a list of
9 what that included?
10 A. Uh-huh. Yes.
11 Q. Okay. On page 12 of your report,
12 there is a list of "Literature Cited." Does
13 this include everything you've relied on in
14 forming the opinions in your report?
15 A. No.
16 Q. What -- what does this include?
17 A. These include the references that
18 we cited in the report that were specifically
19 cited.
20 Q. Okay. And what else did you rely
21 on that's not included on this list?
22 A. Well, there's an extensive
23 literature on coastal and wetland ecology on
24 cypress swamp that runs to hundreds of papers
25 and scientific literature in books. And all

11/19/2007
Page 34
1 of that, you know, has helped us form, you
2 know, our understanding of these topics over
3 the last several decades. So, I mean, you
4 are referring on that broad scientific
5 literature, and then specifically when you
6 write a scientific paper, if you cite a
7 paper, it means you specifically referenced
8 it or used information for it. That's why
9 these are here (indicating).
10 Q. Okay. Is there anything here, I'm
11 sorry, is there anything that's not on this
12 list that you -- I guess maybe I will start
13 over one more time. You've referenced that
14 you've accumulated knowledge over a number of
15 years through this being your field of
16 expertise, and that included a number of
17 reference materials. Are there any of those
18 materials that you actually looked at and
19 reviewed again for this case, but didn't end
20 up citing in your report?
21 A. Yeah. Yes.
22 Q. Can you list any of those?
23 A. Well, I probably could. Let's see.
24 Just off the top of my head, there's a paper
25 by Paul Kemp who is one of the expert

11/19/2007
Page 35
1 witnesses on the Maurepas swamps where he
2 conducted some scientific studies. I've read
3 that over, you know, but, I mean, there are
4 many. If you wanted, I could sit down and
5 probably come up with a list, but it would
6 be, you know, I think it ran to probably over
7 a hundred articles, maybe several hundred.
8 Q. Several hundred articles or one
9 hundred to several hundred articles that
10 you've reviewed?
11 A. Yeah, I'm just guessing, because,
12 you know, we're basing our -- there's a huge
13 foundation of scientific literature that
14 we're together know about. And then from
15 that you distill specific papers that you
16 want to cite here specifically. That's the
17 difference. These are cited in this report.
18 Q. Okay. Right, but you're, like, for
19 example, the paper you referenced by Paul
20 Kemp, that's something that you looked at,
21 but you didn't end up citing it, but you
22 considered it in --
23 A. Yeah, exactly.
24 Q. Okay. Considered it in coming to
25 your opinions in this case?

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Page 36
1 A. That's right.
2 Q. Okay. And do you think it would be
3 possible for you to recreate a list?
4 A. Of all of those papers?
5 Q. Uh-huh. Yes.
6 A. Yeah, it would be possible.
7 Q. Okay.
8 A. This is sort of the normal way
9 science is done is the reason I'm telling you
10 this.
11 Q. Right. I understand. I'm just
12 trying to make sure I have a record of what
13 you considered. That's all. Other than
14 scientific literature, did you look at any
15 other information?
16 A. Other than scientific -- well, I
17 mean, you know, I'm aware of press reports,
18 of course, about the area. I've -- I've done
19 work in that area extensively, and so I've
20 made observations over the past several
21 decades as I've worked down there. I
22 probably didn't make it into the
23 publications, but it affected the way I
24 thought about the area.
25 Q. Okay. And did you -- I note that

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Page 37
1 on page 3 of your report it references a
2 communication with Peggy McClain?
3 A. Yes. Uh-huh.
4 Q. Can you tell me who Peggy McClain
5 is?
6 A. She is a person from the Louisiana
7 Department of Agriculture and Forestry. This
8 is actually a communication that Dr. Shaffer
9 did.
10 Q. Okay. Do you know Peggy McClain
11 yourself?
12 A. I don't know her personally. I
13 know of her.
14 Q. Okay. Along with that reference to
15 Peggy McClain, the report also references
16 LADNR aerial imagery.
17 A. Uh-huh.
18 Q. Can you tell me what that is?
19 A. Louisiana Department of Natural
20 Resources' imagery of the coast. Again, this
21 is a common way of getting information in
22 science is speaking to people.
23 Q. Okay. Is there anyone else that
24 you spoke with?
25 A. We later spoke with John Barras,

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Page 38
1 who works for the U.S. Geological Survey in
2 Baton Rouge. He's also a specialist on
3 mapping of Louisiana coastal marshes.
4 Q. Okay. What did you speak with him
5 about?
6 A. About maps or photographs at
7 various times in, of that area.
8 Q. And is he someone that you know
9 through your professional career?
10 A. Yeah. I know him professionally
11 and personally.
12 Q. Okay. And when you contacted him
13 in preparing your report for this case -- I'm
14 sorry. Did you contact him specifically in
15 preparation of this report?
16 A. Dr. Shaffer did.
17 Q. Okay. Can you -- in addition to
18 the LADNR aerial imagery that you referenced,
19 were there other images or maps that you
20 considered?
21 A. We looked at an extensive
22 photographs of the area taken prior to and
23 during the construction of MRGO. We looked
24 at maps and photographs and various reports.
25 Q. Where did you get those

11/19/2007
Page 39
1 photographs?
2 A. I think it was supplied by the
3 attorneys.
4 Q. The photographs that are behind tab
5 1 of your report, is that the photographs
6 that you're referencing now?
7 A. That's -- that's part of them.
8 Q. Part of them.
9 A. These were selected from a much
10 larger library of photographs that we looked
11 at.
12 Q. Okay. I would like you to take a
13 look at this third item that I'm marking --
14 MR. ANDRY:
15 Day 3. Can I have a copy?
16 MS. MILLER:
17 Yes.
18 MR. ANDRY:
19 Thank you.
21 Q. Is this something that you prepared
22 (indicating)?
23 A. These -- these are documents that
24 we provided to the lawyers. Mainly, I think
25 the ones we cited in that report.

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Page 40
1 MR. ANDRY:
2 Do you know what Exhibit 3 is?
4 Q. Well, I was wondering if you could
5 tell me what -- I guess that's what I was
6 asking you just now. This document, you
7 prepared this, is that correct?
8 A. Dr. Shaffer and I put this
9 together, yeah.
10 Q. Okay. And you put that together to
11 give to the plaintiffs' attorneys?
12 A. You know, I think some of these,
13 there was a request from the government for
14 copies of all the articles. And so it was in
15 response to that. They had some of these
16 earlier, but I think we did this because they
17 were requested.
18 Q. Okay. So this document marked as
19 Day 3, it is entitled "Day Documents," is
20 that correct?
21 A. That's correct, yes.
22 Q. And you are saying that it was
23 prepared and mostly contains what is in your
24 list of literature cited on pages 12 to 14 of
25 your report?

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Page 41
1 A. I think that was the reason we did
2 this. They were requested. And so we
3 provided this.
4 Q. Okay. And there are some things on
5 the "Literature Cited" list on your report
6 that begins on page 12 that are not in the
7 list of "Day Documents?"
8 A. They may have been provided earlier
9 or they weren't requested. I'm not sure.
10 Q. Okay.
11 MR. ANDRY:
12 To the extent there are questions
13 about the origin or -- I don't
14 really know what even Day 3 is, so
15 to the extent there are questions
16 about Exhibit Day 3 about what
17 those documents, how they relate to
18 the documents listed in his report,
19 I just object to the form of those
20 questions, but you can ask, but I
21 just make a general objection to
22 the form because I don't know if
23 the witness knows or you know or I
24 know what exactly Day 3 is and/or
25 why it was prepared and when it was

11/19/2007
Page 42
1 provided, but to the extent he can
2 testify. I just object to the form
3 of those questions, so that way I
4 don't have to keep objecting every
5 time and you can just ask him.
7 Q. Dr. Day, have you understood my
8 questions about this document?
9 A. With respect to what he just said,
10 I'm not sure.
11 Q. Okay.
12 A. I know what these are (indicating).
13 We were asked to provide a series of
14 documents mostly in our report and we did
15 that.
16 Q. Okay. And did you actually type or
17 produce this particular document?
18 A. This sheet (indicating)?
19 Q. Right.
20 A. No.
21 Q. Do you know who did?
22 A. No.
23 Q. Okay.
24 A. We had, we had help. I mean, we
25 didn't, Dr. Shaffer and I didn't do all this.

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Page 43
1 There were several people helping with this
2 and they helped us find these documents.
3 Q. Okay. Can you tell me who those
4 people are?
5 A. Sarah Mack, who is in this room,
6 and then some of my students at LSU. And we
7 called people on the phone and asked them if
8 we could get a copy of reports. It is the
9 normal way you find scientific documents.
10 Q. And by calling people, do you mean
11 other scientists?
12 A. Other scientists, people,
13 librarians, you know.
14 Q. Okay. All right. Your report also
15 references Dr. Penland's report on a couple
16 of pages, page 4 and page 11?
17 A. That's right.
18 Q. Did you communicate with Dr.
19 Penland prior to preparing your report?
20 A. I did, yes.
21 Q. And what did you discuss with Dr.
22 Penland?
23 A. Dr. Penland's report had to do with
24 changes in vegetation communities in the area
25 of that area and we discussed that with him

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Page 44
1 and reviewed his report.
2 Q. Did you -- had he completed his
3 report prior to your writing your report?
4 A. I think his was, he may have been
5 in the process of doing it, but his was
6 completed prior, yeah, prior to ours.
7 Q. So you reviewed his final report --
8 A. Yeah.
9 Q. And did you rely on that in forming
10 your opinions in this case?
11 A. To some extent, yes.
12 Q. Okay. Did you review the reports
13 of any other experts in this case?
14 A. I looked over not so much in
15 detail, but I looked over a number of those
16 reports, Kemp, Bea, just to get a feeling
17 from what they were talking about, to see how
18 this would fit in.
19 Q. Okay. And did you attend any
20 meetings in person with the other experts?
21 A. Yes.
22 Q. And did those meetings include
24 A. Sometimes.
25 Q. Do you know how many times you

11/19/2007
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1 attended meetings with the other experts?
2 A. No.
3 Q. Would it be more than one?
4 A. Oh, yeah. I would say it was more
5 than a dozen.
6 Q. Okay. And do you recall the time
7 frame of those meetings?
8 A. Well, the first meetings would have
9 been late last year or early this year.
10 Then regular meetings. I mean, some of the
11 scientists I saw, if not weekly, almost
12 weekly.
13 Q. Okay. Other than the materials
14 you've already described as having relied on
15 and reviewed in preparation of your report,
16 are there any additional materials that you
17 reviewed to prepare for this deposition?
18 A. Well, as I said, you know, there's
19 a whole body of information, newspaper
20 reports and discussions with people from the
21 area. And so that fits into this, but
22 scientifically, yes, the general area.
23 Q. Okay. And are there any additional
24 materials, such as maps, photographs or other
25 exhibits that you think you may later want to

11/19/2007
Page 46
1 use to illustrate the opinions you've
2 expressed in your report?
3 A. I may, yeah.
4 Q. Have you given that any thought?
5 A. Well, I mean, in the sense that if
6 something was pointed out to us. There's
7 nothing that I specifically haven't looked at
8 that I think I should have. But scientific
9 information is coming available all the time,
10 and if someone were to find something and,
11 say, show it to me, sure, I would read it.
12 Q. Okay. Have you done any additional
13 work in the development of your opinions in
14 this case since preparation of this report?
15 A. Yes. We've looked at further,
16 looked more carefully at maps. We've looked
17 at some specific literature that deals
18 specifically with areas of the report. So we
19 continue to do that.
20 Q. Okay. On page 2 of your report,
21 you reference or state that you "reserve the
22 right to supplement this Expert Report upon
23 receipt of documents produced by the U.S.
24 Corps of Engineers."
25 What did you mean by that?

11/19/2007
Page 47
1 A. I think probably that's a legal
2 statement that would go into a report like
3 this in general, but it would mean to me that
4 if something came up that we hadn't seen that
5 was pertinent, then we would incorporate that
6 into our findings.
7 Q. Okay. So it -- does it reference
8 specific documents that you personally have
9 requested?
10 A. No.
11 Q. Okay. Have you requested any
12 additional documents from plaintiffs'
13 counsel?
14 A. No, I haven't specifically.
15 Q. Okay. So just to kind of clarify
16 the items that make up your report, we've
17 looked at Exhibit 1, which is what was
18 produced as your expert report. That
19 includes the list of literature cited, your
20 CV, Dr. Shaffer's CV and the eight
21 photographs.
22 We also looked at Exhibit 2, which
23 is the page with your signature. Do you
24 consider that to be a part of your report?
25 A. Yes.

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Page 48
1 Q. Okay. So do those two exhibits
2 together make up your complete report?
3 A. Yes, at this time.
4 Q. Okay. I want to, I guess, now --
5 we've gone over a lot of the background
6 information. I want to turn to your actual
7 opinions, but first I think it would be
8 helpful if you could explain some of the
9 terminology that you use. You reference the
10 Central Wetlands Unit. Can you describe
11 where that is located?
12 A. The Central Wetlands Unit is
13 located between the, what's called the 40
14 Arpent Levee, which is the back levee of the
15 Mississippi in St. Bernard and Orleans Parish
16 and the MRGO. And on the northwest, it's the
17 Gulf Intracoastal Waterway. And on the east
18 it is the Bayou La Loutre Ridge.
19 Q. And does the MRGO, by that we're
20 discussing the Mississippi River Gulf Outlet,
21 correct?
22 A. Yes.
23 Q. And that crosses the Bayou La
24 Loutre Ridge, is that correct?

11/19/2007
Page 49
1 Q. So when you refer to the Central
2 Wetlands Unit, do you mean only the area, I
3 guess it would be sort of on the south --
4 A. The east. Southeast.
5 Q. But west of the MRGO or south of
6 the MRGO, is that correct?
7 A. It's -- it's the downriver portion
8 where the Bayou La Loutre Ridge connects from
9 the Mississippi River to the MRGO levee, but
10 then also we looked at the continuation of
11 the Bayou La Loutre Ridge past that.
12 Q. Okay. And is the part of the Bayou
13 La Loutre Ridge that continues past the MRGO
14 considered to be part of the Central Wetlands
15 Unit?
16 A. Wait. Restate.
17 Q. The portion of the Bayou La Loutre
18 Ridge that extends in the opposite direction
19 of the river from the MRGO, is that
20 considered to be --
21 A. No.
22 Q. That's not part of the Central
23 Wetlands Unit?
24 A. That's not part of the Central
25 Wetlands Unit.

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Page 50
1 Q. Okay. What is that area referred
2 to as?
3 A. The Central Wetlands Unit?
4 Q. No. The other portion.
5 A. Well, it's -- let's see. It had a
6 name. It is not the Proctor Well -- it's
7 the, that's called the Bayou La Loutre Ridge
8 as it sort of went easterly and southerly
9 from the MRGO.
10 Q. Okay. Is -- can you describe the
11 area that makes up the Pontchartrain Basin?
12 A. The Pontchartrain Basin is bordered
13 by the Mississippi River. It goes up to
14 where the Mississippi River intersects with
15 what's called the Pliestocine uplands, which
16 is the high land when you get out of
17 wetlands, and then over to Pearl River, but
18 the basin itself includes the drainage that
19 drains into that basin. So some of that goes
20 up into Mississippi and then it comes down
21 around Lake Borgne and out to the Chandeleur
22 Islands.
23 Q. Okay. So the Central Wetlands Unit
24 is within the Pontchartrain Basin?

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Page 51
1 Q. Okay. Does your opinion relate
2 only to the Central Wetlands Unit?
3 A. No.
4 Q. Okay. What area does your, do your
5 opinions --
6 A. Well, it would include the wetlands
7 to the east of the Central Wetlands Unit
8 around Lake Borgne, the area along the, along
9 the Bayou La Loutre Ridge and even to the
10 south of there.
11 Q. Okay. You've also mentioned
12 several deltas. These are on page 6 of your
13 report. You reference the St. Bernard Delta,
14 the Plaquemines-Modern Delta and the
15 Lafourche Delta. Can you describe where
16 those are?
17 A. The Lafourche Delta refers to the
18 delta lobe that was formed by the Bayou
19 Lafourche distributary, the channel of the
20 river. And the bayou, the St. Bernard Delta
21 was the old deltaic complex that went out
22 leaving the river somewhere in the New
23 Orleans metropolitan area and going to the
24 east. Bayou La Loutre Ridge is one of the
25 old channels of that Delta. The Mississippi

11/19/2007
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1 River towards its end, you get into what's
2 called the Birdfoot Delta, that's the Belize
3 or modern Delta.
4 Q. Okay. And so the area -- is it
5 correct that the area your report focuses on
6 is the St. Bernard Delta?
7 A. Yes.
8 Q. Okay.
9 A. And it also focuses on the whole
10 Barataria Basin to some extent, I mean, the
11 whole Pontchartrain Basin. Sorry.
12 Q. Okay. I understand. And your
13 report references baldcypress-water tupelo a
14 number of times. Are those two species of
15 trees?
16 A. Yes.
17 Q. Okay. And are they always found
18 together?
19 A. Not always, but generally
20 vegetation communities are identified by
21 their dominant, often identified by their
22 dominant species that exist there. And
23 cypress-tupelo are very, very commonly found
24 together.
25 Q. Okay. You also mentioned live oak.

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1 Is that a tree that grows in the Central
2 Wetlands Unit?
3 A. It would grow on the uplands, the
4 well-drained natural levees. It wouldn't
5 grow -- well, I guess in areas that there
6 might be slightly elevated land. It wouldn't
7 grow in an area that is permanently flooded,
8 for instance.
9 Q. Okay. Are cypress and water tupelo
10 able to grow in areas that are flooded?
11 A. Yes. Those are wetland plant
12 species.
13 Q. I see. Okay. So the live oak is
14 not considered a wetland plant?
15 A. No. No.
16 Q. Okay. And do these trees, the
17 cypress and water tupelo, do they grow in
18 other areas of the Louisiana coast?
19 A. Yes.
20 Q. Okay. You also reference a
21 combination of wetlands, marshes and swamps.
22 Can you explain if there is a difference in
23 those terms.
24 A. Wetlands, wetlands refers to those
25 plants growing in the wetland environment.

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1 And there are very specific definitions for
2 that. Swamps refer to wooded vegetation.
3 Forest, marshes would refer generally to
4 grasses.
5 Q. Okay. So the -- so grasses grow in
6 a marsh area and there are different species
7 of plants in a wetland area?
8 A. Almost always, yeah. Sometimes you
9 would find a wetland that would have just one
10 species, but that's, that's not common.
11 Q. I guess maybe can you explain in a
12 little or explain again perhaps the
13 difference between a wetland and a marsh?
14 A. Wetland is the general term. A
15 marsh is a wetland. A cypress-tupelo swamp
16 is a wetland.
17 Q. Ah, okay.
18 A. It refers to the different kinds of
19 vegetation communities that exist there.
20 Wetland is the most general term.
21 Q. I see. That clarifies it. Thank
22 you. And what about when you refer to a
23 forested wetland?
24 A. That's another way of referring to
25 a cypress swamp, but there can be other

11/19/2007
Page 55
1 species that would make up a forested
2 wetland.
3 Q. Okay. In the area that is relevant
4 to your report, are the cypress-tupelo trees
5 the only type of trees that grow there?
6 A. No, but those are the dominant
7 species.
8 Q. Okay.
9 A. There are other species that grow
10 along with them.
11 Q. Okay. So I will get into the
12 substance of your opinions now. On page 2 in
13 basically the introductory paragraph, your
14 report states that "baldcypress - water
15 tupelo swamps offer excellent hurricane
16 protection, while the intermediate and
17 brackish marshes and open areas created by
18 the Mississippi River-Gulf Outlet are much
19 more inferior with regard to wind- and
20 storm-surge reduction."
21 Is this one of your opinions?
22 A. Yes.
23 Q. And what is the basis for this
24 opinion?
25 A. Well, the forests, one, are very

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1 resistant to being blown down by hurricanes.
2 I think they are the third most
3 resistant tree to being knocked down by,
4 during hurricane winds. And second, because
5 of their three-dimensional structure, they
6 have a much more -- it is the friction of the
7 water coming through. They affect both the
8 surge and the waves on top of the surge.
9 Q. Okay. So this opinion then
10 references, I guess it is kind of twofold,
11 and one portion of it means that the forest
12 themselves are resistant to hurricanes, is
13 that right?
14 A. Uh-huh.
15 Q. And then the second part of that, I
16 gather, is that the forests, in addition to
17 their own survival, have an impact on a
18 hurricane surge and a hurricane's waves?
19 A. That's right.
20 Q. Or the waves from the hurricane
21 surge? Yes?
22 A. Yes.
23 MR. ANDRY:
24 You have to say yes.
25 THE WITNESS:

11/19/2007
Page 57
1 Okay. Sorry.
3 Q. Okay. Is -- can you explain the
4 methodology by which you would measure the
5 reduction in wind caused by the trees?
6 A. Now, I said reduction in surge and
7 waves.
8 Q. Oh, okay. Sorry. Okay. So can
9 you explain then the methodology by which you
10 can measure the reduction in surge and waves?
11 A. Well, you can do that in a number
12 of ways. You can -- for instance, people
13 looked at levees that had extensive wetlands
14 in front of them and levees that didn't. The
15 levees that had extensive wetlands survived
16 for the most part. Second, people have
17 measured the reduction of hurricane surge as
18 it went across wetlands. And third, it's
19 been observed that during storms in a forest,
20 because of its three-dimensional structure,
21 essentially, you know, a few hundred meters
22 of forest will basically knock the waves off
23 of the hurricane surge, will --
24 Q. Okay. Have you yourself done any
25 of these measurements that you reference?

11/19/2007
Page 58
1 A. No.
2 Q. Who -- where do you get that
3 information from about the measurements that
4 have been done?
5 A. Well, there are a number of studies
6 showing the decrease in the surge as the
7 hurricane surge moves across wetlands. And
8 there are model studies looking at wave
9 dynamics in wetlands, in forests and
10 observations.
11 Q. Okay. Can you tell me in more
12 detail about those studies, like how we might
13 be able to locate them?
14 A. I mean, one of the best known is
15 the Corps of Engineers study where they had a
16 general relationship between the distance of
17 wetlands and the loss of hurricane surge. It
18 was something on the order of two feet per
19 mile. And there are other studies in other
20 parts of the U.S. I mean, in other wetland
21 areas where --
22 Q. Okay. How did you learn of the
23 Corps of Engineers study?
24 A. It's -- it's in the Corps of
25 Engineers reports and it is well-known. I

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1 mean, well, in south Louisiana especially.
2 Q. Do you --
3 A. I was in a meeting Friday where I
4 showed it, presented it. I mean, it's been
5 presented over and over.
6 Q. Okay. Do you know how that study
7 was done?
8 A. It was an empirical study by
9 looking at the surge of the coast, the surge
10 reduction, the reduction in surge as it moved
11 across wetland areas.
12 Q. Was this with respect to a
13 particular storm?
14 A. No. This, this particular figure
15 I'm talking about was with respect to a
16 number of storms.
17 Q. Do you know the year that that
18 study was done?
19 A. I don't know. Not off the top of
20 my head.
21 Q. Do you have a rough idea?
22 A. It was maybe in the eighties or the
23 nineties.
24 Q. Okay. And do you know whether that
25 study involved, maybe you already said this,

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1 but did it involve forested wetlands
2 specifically?
3 A. Well, it -- the wetlands that the
4 storms moved across involved both marshes and
5 swamps.
6 Q. Was there any difference in the
7 empirical values between a forested wetland
8 and a marsh wetland?
9 A. I don't know if it was in that
10 study or not.
11 Q. Do you know if in some other study
12 such a difference has been calculated?
13 A. Well, the -- for instance, the
14 modeling studies that show that if you put,
15 that show that if you put trees in a wetland,
16 the surge is reduced and the waves are
17 reduced on top of the surge. There are
18 empirical studies, for instance, during the
19 tsunami in the Indian Ocean a few years ago
20 that areas with mangrove forests, for
21 instance, had a great reduction of the surge
22 as it moved through mangrove compared to
23 areas that were cleared.
24 Q. Okay. By areas that were
25 cleared --

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1 A. Where the mangroves had been cut
2 down or where there were no mangroves along
3 the coast.
4 Q. So it is comparing the mangroves to
5 open water, is that correct?
6 A. No, no. For instance, if people
7 had come in and cleared the mangroves and
8 planted rice or built houses or something
9 there.
10 Q. Okay. Do mangroves grow on dry
11 land then?
12 A. No. They are a coastal tree, a
13 tropical coastal tree.
14 Q. Okay. Are there any gauges that
15 are able to measure the ability of wetlands,
16 and specifically cypress swamps, to reduce
17 storm surge?
18 A. Well, people have used water level
19 gauge data, and they have also, after Rita
20 and Katrina, for instance, they've used
21 strand lines to look at the surge at
22 different areas as the hurricane surge moved
23 across the coast.
24 Q. What, a strand line?
25 A. It is a debris line looking at --

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1 you know, when the water reaches a certain
2 level, debris will be caught on trees or
3 hurricane, I mean, road overpasses and things
4 like that, and that tells you how high the
5 water got (indicating).
6 Q. Okay.
7 A. This was done, I think, extensively
8 for the Team Louisiana report.
9 Q. Okay. Were you involved in that
10 modeling?
11 A. No.
12 Q. Okay. Have you -- but you've read
13 the results of it?
14 A. Yeah. I've read it and I discussed
15 it with scientists who were doing it.
16 Q. Was this -- is this the Team
17 Louisiana report that you are referencing?
18 A. Well, the Team Louisiana report
19 referred to it, but there was a team of
20 people who went into the wetlands after
21 Katrina and Rita and made hundreds of
22 measurements of these water level, of the
23 storm surge based on these strand lines.
24 Q. And was their study published?
25 A. I think some of that data is in the

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1 Team Louisiana report and they may -- well,
2 they may be preparing it for publication in
3 scientific literature now. In fact, I saw a
4 manuscript.
5 Q. A manuscript by who?
6 A. The first author was a Dr. Hassan
7 Mashriqui, who is at LSU.
8 Q. And when did you see that
9 manuscript?
10 A. It was this year.
11 Q. Did you speak with Dr. Mashriqui?
12 A. Yes, I did.
13 Q. About this study?
14 A. Yes.
15 Q. And who else did you say --
16 A. In fact, I was the coauthor on that
17 manuscript. I remember now.
18 Q. I see. But you said you were not
19 involved with taking the measurements
20 yourself, is that correct?
21 A. I didn't go out in the field and
22 take the measurements, no.
23 Q. Okay. Who else worked on that
24 study?
25 A. Well, Paul Kemp worked on it and, I

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1 think, Ivor Van Heerden. And there were a
2 number of other people involved in the
3 measurements. They went across the whole
4 coast.
5 Q. Okay. Other than the manuscript
6 that you reference -- which has not yet been
7 published, is that correct?
8 A. I'm trying to remember if they
9 published a technical report on that study.
10 And it's my impression it's in the Team
11 Louisiana report.
12 Q. Okay. Were you a coauthor on the
13 Team Louisiana report?
14 A. No, I wasn't. No.
15 Q. So have you published anything
16 related to the opinion that you state on page
17 2, that the baldcypress-water tupelo swamps
18 offer excellent hurricane protection?
19 A. No. That's based on literature and
20 discussions with experts.
21 Q. Okay. And when you say excellent
22 hurricane protection, what do you mean by
23 that?
24 A. That it affects both the surge and
25 the waves on top of the surge, which once the

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1 elevation of the surge exceeds the marsh,
2 then you're not affecting the waves on top of
3 the surge.
4 Q. Can you say that again?
5 A. There is the surge, which is the
6 water level itself that, you know, that comes
7 up, and then on top of that there are waves
8 that are generated by the winds.
9 Q. Okay.
10 A. So a three-dimensional forest will
11 reduce the waves on top of the surge as well
12 as reducing the surge.
13 Q. Okay. And what you said a few
14 minutes ago was that once the surge level,
15 the total water level, exceeds the height of
16 the trees or other vegetation, I guess --
17 THE WITNESS:
18 No. Marsh.
19 MR. ANDRY:
21 question.
23 Q. Okay. So once the water level
24 exceeds the marsh, the marsh no longer has an
25 impact on the waves?

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1 A. On the waves.
2 Q. And what is the -- how do you know
3 that?
4 A. Well, from reading the literature
5 and also from talking to people who have
6 measured it.
7 Q. Okay. Do you have a background in
8 hydrology?
9 A. I'm not a hydrologist, but I would
10 say fully a quarter of my publications
11 involved making measurements, hydrological
12 measurements, because they are so important
13 in a lot of ecological studies.
14 Q. And in those publications, would
15 you generally work with other people who are
16 hydrologists?
17 A. Sometimes. And sometimes we did
18 the work ourselves.
19 Q. Okay. And have you yourself done
20 any modeling of storm surge?
21 A. No.
22 Q. Have you done any modeling of
23 hurricane wind?
24 A. No.
25 Q. So that would include -- the

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1 answers you just gave would include modeling
2 of storm surge generally as well as specific
3 to Katrina?
4 MR. ANDRY:
6 question.
8 Q. That is, you haven't done any
9 modeling of Katrina storm surges, is that
10 correct?
11 A. No.
12 Q. And you also haven't done any
13 modeling of Katrina's winds?
14 A. No.
15 Q. So -- okay. Do you -- has your
16 research included any focus on the barrier
17 islands?
18 A. No.
19 Q. Okay. Are you aware of whether
20 barrier islands have an impact on storm
21 surge?
22 A. Well, the people who study them,
23 the storm surge is reduced as it moves across
24 barrier islands.
25 Q. Is that something you know from

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1 literature?
2 A. Yes. And speaking to people,
3 experts.
4 Q. Do you know whether that impact is
5 something that's been modeled?
6 A. Yeah. It has been modeled.
7 Q. Okay. Do you know how that
8 modeling is done?
9 A. Only very generally.
10 Q. Okay. Do you know who or can you
11 tell me how to look into any of that
12 modeling, like where those modeling results
13 might be published?
14 MR. ANDRY:
16 question.
18 Q. You can answer if you know where
19 modeling of barrier islands impacts on surge
20 is published.
21 A. I know some of the people who are
22 doing that modeling, if that is what you
23 mean.
24 Q. Who is that?
25 A. Greg Stone at LSU. Johannes

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1 Westerink at, I think he's at Indiana. He
2 was part of the team that did some of these
3 models. There is a fellow named Leuttich.
4 Ludwig. Leuttich, I think, in North
5 Carolina. And the Corps of Engineers has
6 done modeling of this kind of thing. Paul
7 Kemp and Hassan Mashriqui have modeled this.
8 So there is quite a bit of modeling done on
9 that.
10 Q. And do you mean storm surge
11 generally or specific to the impact of
12 barrier islands?
13 A. Well, they were included in these
14 models because as the storm comes ashore,
15 that's one of the features it crosses over.
16 Q. Okay. That makes sense. So
17 through the models that you've referenced or
18 through some other manner, is it possible to
19 quantify how much marsh impacts storm surge?
20 A. Well, as I said earlier, there are
21 a number of empirical relationships published
22 about the reduction of storm surge as it
23 moves across wetlands.
24 Q. Okay. Okay. And we've mentioned a
25 few minutes ago the Team Louisiana report.

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1 Are you familiar with that report?
2 A. Uh-huh.
3 Q. Have you read it?
4 A. Not in its entirety. I've reviewed
5 it, but, yeah, I've read it.
6 Q. So you've read sections of it?
7 A. Yeah, that's right.
8 Q. Is that one of the things you
9 relied on in forming your opinions for this
10 case?
11 A. Yes, uh-huh.
12 Q. Okay. Have you or are you familiar
13 with the Interagency Performance Evaluation
14 Task Force report, also referred to as IPET?
15 A. I'm familiar with it, yeah.
16 Q. Have you read that report?
17 A. I've seen it and I've looked at it
18 in much less detail than the Team Louisiana
19 report.
20 Q. Okay.
21 A. And I've also spoken with people
22 about the IPET report.
23 Q. Who have you spoken to about the
24 report?
25 A. Well, Paul Kemp, Ivor Van Heerden,

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1 Hassan Mashriqui. Rick Luettich was the guy
2 in North Carolina. I was trying to remember
3 his first name.
4 Q. Okay. Have you -- so you've
5 mentioned he's someone that does the storm
6 surge modeling?
7 A. Yes, uh-huh.
8 Q. Okay. Did you talk to him in
9 advance of preparing this report?
10 A. No, not specifically. I know Rick
11 Leuttich, but I didn't talk to him about this
12 report.
13 Q. Okay. Are you familiar with or
14 aware of the Independent Levee Investigation
15 Team, also called ILIT?
16 A. I'm aware of it, but that's about
17 it.
18 Q. Okay. Did you review that report?
19 A. No.
20 Q. Okay. Have you talked to anyone
21 about that report?
22 A. Not really, not in any detail.
23 Q. On, also on page 2 of your report
24 includes another statement in the
25 introductory statement that the "construction

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1 of the MRGO, the severing of the Bayou La
2 Loutre Ridge and the steady influx of salt
3 water into the baldcypress-water tupelo
4 swamps in Orleans and St. Bernard Parishes
5 quickly and directly killed much of this
6 previously-thriving, extensive habitat."
7 Is that one of your opinions in this
8 case?
9 A. Yes.
10 Q. And what do you base that on?
11 A. Based -- that is based on knowledge
12 of salinity tolerances of cypress-tupelo and
13 other fresh vegetation. It is based on data,
14 on pre- and post-salinities in that area,
15 pre- and post-MRGO salinities, and it is
16 based on maps of, pre- and post-maps of
17 vegetation communities in the area.
18 Q. So you referenced as the basis for
19 that opinion your general knowledge through
20 your professional work. You've also looked
21 at salinity studies from pre-MRGO
22 construction to and post-MRGO construction.
23 And then the third thing you referenced were
24 maps of the vegetation communities and you
25 said pre- and post. By that you mean

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1 pre-MRGO construction?
2 A. Yes.
3 Q. And post --
4 A. And also part of this, specific
5 letters from natural resource agencies
6 commenting on the probable salinity impacts
7 of construction of the Mississippi River Gulf
8 Outlet.
9 Q. Were those state agencies?
10 A. State and federal agencies.
11 Q. And how did you obtain those
12 letters?
13 A. Well, I saw them referenced in the
14 Team Louisiana report.
15 Q. Did you read the letters
16 themselves?
17 A. I've read parts of them, yes.
18 Q. I think in your report you
19 reference one specific letter. It's on page
20 5.
22 Q. Is that what you are referring to?
23 A. Yes.
24 Q. So you read that letter?
25 A. Uh-huh.

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1 Q. Were there other letters that you
2 read?
3 A. Well, there are letters here.
4 There are reports of both the U.S. Fish and
5 Wildlife Service and the Louisiana Department
6 of Wildlife and Fisheries warned the Corps of
7 Engineers that construction of MRGO could
8 have catastrophic effects on surrounding
9 fauna and flora. And also, there are, as I
10 say, there are a number of maps of vegetation
11 pre- and post-MRGO and salinity values pre-
12 and post-MRGO.
13 Q. Okay. The sentence you just read
14 from page 5 of your report, how do you know
15 about those warnings?
16 A. I think I read them directly in the
17 Team Louisiana report.
18 Q. Okay. And is there anywhere else
19 that you became aware of those warnings?
20 A. And they -- I'm trying to remember
21 if I read the actual letters themselves or --
22 I've read printed material, this printed
23 material, and I'm trying to remember whether
24 it was the actual letter or whether it was a
25 transcription of the letter. And I can't

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1 remember that, to tell you the truth.
2 Q. Okay. And you were just
3 referencing the one letter that is cited on
4 page 5 of your report?
5 A. Yes.
6 Q. Did you read other letters?
7 A. I don't think so.
8 Q. Okay. You also on that same page
9 reference an April 1958 Interior report. Is
10 that something you -- it is on the one, two,
11 three, four, fifth line down of that
12 paragraph that you read from in parentheses.
13 A. Yeah. That's right. I've read
14 parts of that report. It is one of the
15 electronic documents we have.
16 Q. Okay. So with respect to the
17 opinions stated on page 2 regarding the
18 influx of saltwater, in addition to salinity
19 studies, maps of vegetation, your background,
20 you also rely on the one letter from, that we
21 just referenced?
22 A. Yes.
23 Q. And did you rely on the Team
24 Louisiana report as well?
25 A. I did.

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1 Q. Okay. With respect to the salinity
2 studies, can you tell me more about those?
3 A. The -- there are several studies.
4 And basically they showed that in the Central
5 Wetlands Unit prior to the construction of
6 MRGO, the salinities were in the range that
7 would not be lethal to cypress-tupelo and
8 afterwards they were.
9 Q. And what are those studies?
10 A. Well, there was a study by
11 Rounsefell, who was working, I think, with
12 the Texas A & M group. He provides pre- and
13 post-salinity. There is a study by the
14 Coastal Environments, Incorporated that
15 provides pre- and post-salinity data.
16 There's an early study by Penfound and
17 Hathaway that gives a range. This was known
18 in the '30s, salinity tolerance of cypress
19 and tupelo.
20 Q. Do you know how those studies that
21 you reference, the methodology by which they
22 were conducted?
23 A. They set up a series of stations in
24 the area from the upper end, the most fresh,
25 running down south of the area where the La

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1 Loutre ridge was and they measured salinity
2 with meters that you use to measure salinity.
3 Q. Okay. So do you know the years
4 that those studies were conducted?
5 A. The earliest salt data that I saw
6 was 1959 prior to the completion of the
7 initial small canal.
8 Q. What do you mean by the initial
9 small canal?
10 A. There was an initial canal dug from
11 the Gulf Intracoastal Waterway out into
12 Breton Sound and then that came back later
13 and it was expanded to the full MRGO.
14 Q. Okay. So the earliest study you
15 saw was 1959. Do you know -- and then you
16 referenced the one thing you looked at was
17 from the 1930s.
18 A. And the 1950s, mid 1950s vegetation
19 maps clearly indicated that this area was a
20 freshwater area or very low salinity area.
21 It was almost all made up of cypress-tupelo
22 swamps and fresh marsh.
23 Q. Okay. And what were the years of
24 the post-MRGO salinity studies that you
25 looked up?

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1 A. Well, there have been a number of
2 them. I mean, from the -- some of them were
3 immediately post-'60, '61, '62, but there
4 have been people out there, right up into the
5 present. We've made, recently made salinity
6 measurements ourself.
7 Q. Who do you mean by "we?"
8 A. We went out and visited the site
9 and I've conducted studies in that area in
10 the nineties. So we've carried out salinity
11 measurements.
12 Q. Is this with LSU?
13 A. Yes.
14 Q. Are those studies published?
15 A. This is a technical report. In
16 that specific area we also published a paper
17 about soil accretionary dynamics in the area
18 just last year.
19 Q. Are these referenced on your list
20 of literature cited in your report?
21 A. No. That is all. Well, let's see.
22 Lane is, I think. Let me just take a quick
23 look here. No. Those are not referred to.
24 Q. Would you be able to compile a list
25 of those salinity studies that you

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1 referenced?
2 A. Yes.
3 Q. Okay. And these are things that
4 you reviewed in forming your opinions for
5 this case?
6 A. That's right.
7 Q. And in these studies, you talk
8 about people going out into the area. And
9 were they actually sampling the water?
10 A. Yes.
11 MR. ANDRY:
13 question. Go ahead.
15 Q. So the studies included taking
16 water samples?
17 A. Well, just measuring the salt in
18 the water. You don't need to take a sample
19 if you have a meter to do it.
20 Q. Okay. Were any of these -- did any
21 of these studies measure a change over time?
22 A. Yes. Taken together they all
23 measure change over time. From a system that
24 was predominantly fresh, supporting the
25 cypress community, to one that was

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1 predominantly salty where the vast majority
2 the cypress had been killed.
3 Q. Okay. I can't remember what your
4 answer was with respect to the study that you
5 conducted with other people at LSU. Was that
6 published?
7 A. It's published. It's a technical
8 report.
9 Q. Okay. And is that listed on
10 your -- would that be listed on a full copy
11 of your CV?
12 A. Yes, it would.
13 Q. Okay. But it is not listed on the
14 cite here?
15 A. No. No.
16 MR. ANDRY:
17 Can we take a break to go to the
18 bathroom?
19 MS. MILLER:
20 Sure, that's fine. We can take a
21 break.
22 VIDEOGRAPHER:
23 It is the end of tape 1. We're now
24 going off the record.
25 (RECESS TAKEN)

11/19/2007
Page 81
1 VIDEOGRAPHER:
2 This is the beginning of tape 2.
3 We're now back on the record.
5 Q. Okay. During the break, Mr. Andry
6 provided me with copies of this document
7 (indicating). Are you familiar with this
8 document?
9 A. Yes.
10 Q. Can you tell me what it is.
11 A. This is a "Study in Wetland
12 Management" of St. Bernard Parish prepared by
13 Coastal Environments, Incorporated published
14 in 1982.
15 Q. Is this one of the studies you
16 referenced earlier?
17 A. Yes.
18 Q. So what Exhibit 4 -- I've marked
19 this as Exhibit 4, is that right, on the
20 front?
21 A. Yes.
22 Q. So what this includes is a cover
23 page, is that what the first page is, from
24 the study?
25 A. That's the cover page, the title

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1 page.
2 Q. The title page from the study. And
3 then the second page of Exhibit 4 is figure
4 1-2 of the study. Can you tell us what that
5 is.
6 A. This is the general study area that
7 we're talking about. And it identifies the
8 subunits. This study identified these
9 different parts of the study area as the
10 subunits. And so we can identify these
11 different subunits. C refers to the Central
12 Wetlands Unit. And you can see, I'll
13 describe this, but there is the MRGO channel,
14 which runs down on the east side of the
15 Central Wetlands Unit (indicating). Then C
16 refers to the Central Wetland Unit. F is the
17 urbanized area. And so the Central Wetlands
18 Unit -- there's a levee on the Lake Borgne
19 side of the urbanized area and that's called
20 the 40 Arpent Levee and it refers to a unit
21 of measure, a French unit of distance
22 measure. Then the Central is bordered on the
23 south by part of the Bayou La Loutre Ridge,
24 and that's this section running from Poydras
25 over to Verret right there. And then on the

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1 north side near the letter B is the western
2 end of the Central Wetlands Unit, but it also
3 includes, for the purposes of our effort
4 here, it includes that small triangular area
5 just south of the U.S. Highway 90 emblem.
6 You see that small triangular area? Now
7 here, I'll circle it if you'd like
8 (indicating).
9 Q. Maybe, actually it might be helpful
10 if you could use this blue pen to contrast
11 the black and mark it on your copy of the
12 map.
13 A. Now, what do you want me to mark?
14 Q. The area -- I guess if you want to
15 go ahead and draw an outline around what you
16 are describing as the Central Wetlands Unit.
17 If I understood what you just said correctly,
18 this map has an area marked C, but are you
19 saying that the Central Wetlands Unit
20 includes things beyond that sheeted area?
21 A. It includes the B, the area marked
22 B, and it also includes that small triangular
23 area to the west of the Central Wetlands
24 Unit.
25 Q. Yeah, if you could draw that.

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1 A. So you want me to do the whole
2 area.
3 Q. You can draw the triangular area.
4 A. So this right here. The reason
5 that's not designated in part of this report,
6 this is a report on St. Bernard Parish. This
7 small triangular is in Orleans Parish, but it
8 is part of the same physiographic unit.
9 Q. Okay. And on this map you
10 referenced the 40 Arpent Levee. Is that the
11 line that separates section C from section F?
12 A. Yes.
13 Q. Okay. And is -- you said that
14 section F is the developed or urbanized area.
15 Is that considered part of the Central
16 Wetlands Unit?
17 A. No. That's outside of the Central
18 Wetlands Unit.
19 Q. Prior to it being developed, was
20 that area wetlands?
21 A. Some of the marginal areas might
22 have been wetlands, but in general that
23 defines the limit of the well-drained land
24 adjacent to the Mississippi River and the old
25 Bayou La Loutre Ridge.

11/19/2007
Page 85
1 Q. Okay. Okay. This --
2 A. And I'd also like to point out the
3 Bayou La Loutre Ridge which starts at the
4 Mississippi River at Poydras and then moves
5 out past what's called Yscloskey, Hopedale,
6 and it continues on past the MRGO out towards
7 the letter M and L in there. And that is an
8 old channel of the Mississippi River. And so
9 it has an elevated ridge.
10 Q. On --
11 A. You want me to mark that?
12 Q. Sure. I was going to ask, it looks
13 like there are some dashed lines. Do those
14 correspond --
15 A. Where, where are the dashed lines?
16 Q. It looks like at section V,
17 which --
18 A. That looks like it outlines -- it
19 separates units that they have identified.
20 And so they are just drawing lines between
21 their units. Yeah. For instance, T is the
22 Bayou Terre Aux Boeufs area. And so -- and S
23 is what they called the Middle Bayou area.
24 And M is the Eloi Bay.
25 MR. ANDRY:

11/19/2007
Page 86
1 Eloi Bay or Bay Eloi.
2 THE WITNESS:
3 Bay Eloi.
4 And R would be the Lower La Loutre
5 Ridge. So these are somewhat
6 natural physiographic subunits in
7 this basin that they have
8 identified for the purposes of
9 describing them and suggesting
10 management for them.
12 Q. Sure. I think it probably would be
13 helpful if you wanted to go ahead and mark
14 where you described the Bayou La Loutre
15 Ridge.
16 A. The Bayou La Loutre Ridge, it runs
17 from Poydras. And I'll just -- generally
18 this sort of runs down the middle of the
19 ridge (indicating). Somewhere out here it
20 probably has very little surface expression
21 anymore because these ridges form and then
22 they slowly sink.
23 Q. Okay.
24 A. And this part of the ridge, for
25 instance, there, prior to MRGO, there were

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1 both cypress and oak forests.
2 Q. Is this map of a large enough scale
3 that you can show where those forests are
4 that you just referenced?
5 THE WITNESS:
6 Can I refer to that photo?
7 MR. ANDRY:
8 Yeah. You can refer to whatever
9 you want to refer to.
10 THE WITNESS:
11 This is a color map provided by
12 John Barras of the U.S. Geological
13 Survey showing the wetland units,
14 the physiographic vegetation units
15 in this area in 1978 and 1956. So
16 this is 1956. This is part of the
17 information that you can obtain
18 from the -- it is U.S. government
19 information.
21 Q. I'm going to mark this as an
22 exhibit as well, Day No. 5.
23 MR. ANDRY:
24 Okay.
25 MS. MILLER:

11/19/2007
Page 88
1 I don't want to block any of these
2 maps.
3 MR. ANDRY:
4 Put it right up here (indicating).
5 MS. MILLER:
6 Is that okay (indicating)?
7 MR. ANDRY:
8 Uh-huh.
10 Q. Okay. So can you describe -- you
11 said the left-hand figure is 1956.
12 A. 1956. You can see the Bayou La
13 Loutre Ridge coming out here. And the green
14 refers to what are called levee forests, well
15 drained enough to support non-wetland
16 vegetation. And then the orange refers to
17 cypress. You can see extended out well
18 beyond the point where the Bayou La Loutre
19 Ridge was intersected by MRGO, which comes
20 about here (indicating).
21 Q. Sorry to interrupt. It looks like
22 there are two shades of orange. What is the
23 distinction between the two?
24 A. This right here (indicating)?
25 Q. Uh-huh.

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1 A. That is fresh marsh. And this is
2 cypress forest (indicating). And the green
3 would be dominated by oak forests.
4 Q. Okay. Do you all have a legend
5 that accompanies this map?
6 A. No. I don't think so.
7 Q. Okay. How is it you know what the
8 colors represent?
9 A. Well, this was given to us by John
10 Barras, and he described it for us.
11 Q. Prior to receiving it from John
12 Barras, had you seen these maps before?
13 A. Not this particular map. I've seen
14 a number of vegetation-type maps in that
15 area. This one is just -- the color really
16 makes it stand out and what was out on the
17 Bayou La Loutre Ridge.
18 Q. Okay. I want to see if we can make
19 it as clear as possible for the record again
20 since there's no legend. Can you explain
21 again, it looks like there are some brown and
22 red areas. Do you know what those represent?
23 A. These red areas indicate urban
24 development. The green areas indicate
25 terrestrial forest, non-wetland forest

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1 dominated -- this would be dominated by oaks.
2 The orange represent cypress-tupelo swamps,
3 so they extended well out on the Bayou La
4 Loutre Ridge. And then the, what would you
5 call that, a pale orange --
6 Q. I'm not really sure.
7 A. Are fresh marshes, and they also
8 extended out along the Bayou La Loutre Ridge.
9 MR. ANDRY:
10 Just for the purposes of the
11 record, it might be helpful if you
12 just had him, to the extent he's --
13 there are two different color
14 oranges. Just have him draw F or
15 write FM in the area that indicates
16 fresh marsh and C in the area that
17 depicts cypress, and that way you
18 can have --
19 THE WITNESS:
20 C will be cypress and F will be
21 fresh marsh.
22 MR. ANDRY:
23 That way the record is clear as to
24 what part he's talking about.
25 THE WITNESS:

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1 And green, just for a general way
2 of describing it, I'm going to call
3 it an oak forest. This is G
4 (indicating).
6 Q. Could you also, I don't know if you
7 can fit your letters into the brown and red
8 areas, but could you include on your list --
9 A. I'm going to call that U just as a
10 general term for urban or developed.
11 Q. Okay. And the -- is there a
12 difference between what you're calling U and,
13 for example, these dark areas over here
14 (indicating)?
15 A. Well, that would be -- no. I think
16 that also is developed land.
17 Q. Okay.
18 A. That reddish and brownish.
19 Q. Okay.
20 A. So we can put a U here. But, I
21 mean, it is not necessarily urban in the
22 sense you think of it. It is developed land.
23 Drained.
24 Q. Okay. Do you know how that map was
25 created?

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1 A. In general, these maps are created
2 by people who look at photos and take them
3 and assign colors to different vegetation
4 units. It is a standard methodology. A
5 photo interpretation.
6 Q. Okay. And you say that this map
7 reflects 1956 vegetation.
8 A. (Witness indicating.)
9 Q. The one on the left-hand side of
10 Exhibit 5. Do you know when this map was
11 created?
12 A. Well, this particular map was
13 created very recently by John Barras using
14 maps from that period.
15 Q. Did he create it specifically for
16 you to use at this deposition?
17 A. He didn't create it specifically
18 for this deposition, but Dr. Shaffer
19 requested it from him and he provided this
20 information to us.
21 Q. Okay. When did you receive this
22 map?
23 A. Within the last two weeks.
24 Q. Okay.
25 A. It just makes -- the nice thing

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1 about it, it makes very clear because of the
2 colors. The same general patterns are shown
3 in this, these here, in this earlier report
4 by Coastal Environments, which is Day 4, but
5 it is black and white, so it doesn't stand
6 out as well.
7 Q. I'm sorry. Do you mean that in the
8 full report --
9 A. In the full report.
10 Q. From which Exhibit 4 came?
11 A. Yeah.
12 Q. There are other sections that show
13 vegetation types?
14 A. Yes.
15 Q. Okay. But it is not reflected on
16 Exhibit 4 itself?
17 A. No.
18 Q. Would you describe what the
19 right-hand side of Exhibit 5 shows.
20 A. This is 1978. It shows, for
21 instance, now there is the 40 Arpent Levee is
22 in place because there is a straight line
23 here. This is now leveed. It shows that the
24 area that was cypress swamp and fresh water
25 marsh is now brackish marsh, more highly

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1 saltwater marshes.
2 Q. Would you go ahead and write the
3 year on the right-hand side as well?
4 A. It is written right here, if that's
5 sufficient (indicating).
6 Q. Oh, sure.
7 MR. ANDRY:
8 For purposes of the record, when
9 you are discussing an exhibit, if
10 you would, Mr. Day, refer to what
11 particular place as best you can
12 describe it --
13 THE WITNESS:
14 Okay.
15 MR. ANDRY:
16 -- so when somebody is reading the
17 record later --
18 THE WITNESS:
19 All right.
20 MR. ANDRY:
21 -- they will know where you were
22 referring to as far as the writing
23 is referred to in the document.
24 THE WITNESS:
25 All right.

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2 Q. Do you know what year or years that
3 the 40 Arpent Levee was constructed?
4 A. No, but it indicates it was
5 constructed between 1956 and 1978.
6 Q. Okay. It looks to me like these
7 maps are showing slightly different
8 locations.
9 A. Yeah. This one cuts off about
10 right there (indicating). In other words, it
11 does not show the 40 -- the Bayou La Loutre
12 Ridge beyond the MRGO in the 1978 photo.
13 Q. It looks like the 1956 map also
14 does not show the river.
15 A. That's right. The salient things
16 that this shows is, one, that the MRGO is in
17 place, and, second, that used to be
18 predominantly fresh are now more salty.
19 Q. Okay. Do you agree that it also
20 looks like -- well, okay. First, the colors
21 that you described in the 1956 map, are those
22 the same colors that are shown -- like do the
23 same colors represent the same thing in the
24 1978 map?
25 A. The green and red represent the

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1 same thing, urban and well-drained forest,
2 non-wetland forest. The -- in this one, a
3 tan refers to more brackish marshes, and in
4 this one it is more yellow. The main thing
5 is that there is almost a complete loss of
6 the freshwater vegetation by 1978.
7 Q. In the 1978 map, what is the bright
8 yellow color?
9 A. That is what's called the Shell
10 Beach Road. It comes out here and this is a,
11 it now has levees in it. There's a -- it
12 comes out to the MRGO here (indicating).
13 Q. And that's a road?
14 A. Yeah. You can see it existed, the
15 road also existed here (indicating) in 1956.
16 This is this same area.
17 Q. When you describe there being
18 levees in the 1978 map, is that, are those
19 levees that were constructed after 1956 and
20 prior to 1978?
21 MR. ANDRY:
24 THE WITNESS:
25 Yeah. I'm saying that because they

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1 are straight lines here. That
2 indicates there is a levee. And
3 once they put in a levee and pump,
4 then terrestrial vegetation can
5 come in.
7 Q. Do you know when the levees along
8 Shell Beach Road were constructed?
9 A. I don't.
10 Q. So you are surmising from looking
11 at these two maps that they were constructed
12 after 1956 and prior to 1978?
13 A. Yes.
14 Q. And that's something that is a
15 man-made structure?
16 A. These levees, yes (indicating).
17 You can see them if you go out there.
18 Q. Are you -- when you say these
19 levees, it looked to me like you were
20 pointing to what you had described as the 40
21 Arpent Levee.
22 A. Well, that's a general term that
23 people use. It refers to the distance from
24 the river out to where the levee is.
25 Q. Okay.

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1 A. I'm just -- I'm referring to the
2 straight lines along here there. There are
3 levees there now. I know they are there.
4 You can see them.
5 Q. Okay. So when you reference those
6 levees, that includes the area along Shell
7 Beach Road, is that right?
8 A. Yeah.
9 Q. Okay. And so the yellow on the
10 1978 map, could you tell me again what that
11 color represents?
12 A. I'm not exactly sure why he's using
13 a different color for that yellow. It may
14 indicate a developed area. I don't have the
15 color code, so I don't know what that is.
16 Q. Okay. And it looks like there is
17 also a light green color on the 1978 map that
18 is not on the 1956 map. Do you know what
19 that color represents?
20 A. That's the spoil bank of the MRGO.
21 Q. Okay. And is it green because
22 there is some sort of vegetation growing on
23 it?
24 A. Well, because when the spoil was
25 piled up, it raised the elevation of the

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1 land, so you have a mixed vegetation
2 community there that's more -- that has more
3 characteristics of a terrestrial vegetation.
4 There are scrub trees in there. When you go
5 out there, you can see that.
6 Q. Is that the case along the entirety
7 of the MRGO?
8 A. Well, it is certainly the case in
9 here. Once you get out further towards the
10 Gulf of Mexico past into Chandeleur Sound,
11 there is no surface elevation anymore. The
12 dredge sediments are just deposited in water.
13 You can more or less see that here. It
14 extends to this point (indicating).
15 Q. So where you are, you are pointing
16 to Exhibit 4.
17 A. Page 3.
18 Q. In the area that is marked with the
19 letter U, lower spoil?
20 A. Yeah, that's right, which is
21 referred to as the lower spoil.
22 Q. Okay. So it looks like on Exhibit
23 4, the map that is page 2 of the Exhibit 4,
24 but page 3 of the document from which it
25 came, they have marked along the MRGO an area

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1 U that is lower spoil, I that is called
2 middle spoil, and H, that is called upper
3 spoil, is that correct?
4 A. That's right.
5 Q. So from what you were describing in
6 reference to Exhibit 5, are all of the spoil
7 areas along the MRGO that are represented in
8 Exhibit 4, would those have vegetation
9 growing on them?
10 MR. ANDRY:
12 question.
14 Q. Do you know whether --
15 A. There is some -- yeah, there is
16 vegetation there.
17 Q. Okay. Do you know whether the
18 vegetation that has grown on the spoiled
19 banks of the MRGO extends through all three
20 areas that are marked on Exhibit 4 as H, I
21 and U?
22 A. I have not been out to this distal
23 part of the MRGO since the hurricane, so I
24 really don't know what's there, but we've
25 been into this area since then -- it's sort

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1 of a, it was a vegetation community that was
2 made up of trees. It's been really disturbed
3 by the hurricane, but distinctly different
4 from the marsh that grows on either side of
5 it.
6 Q. Okay. And you are referencing the
7 area, the spoil bank area that is within
8 the Central Wetlands Unit?
9 A. The H and the I portions.
10 Q. Okay. What did that area look like
11 prior to Hurricane Katrina?
12 A. It looked like this (indicating).
13 There was much more extensive freshwater
14 vegetation, both cypress swamps and
15 freshwater marsh. And the Bayou La Loutre
16 Ridge was intact. And so the clear thing
17 that happened with the introduction of MRGO
18 was the loss of the freshwater vegetation,
19 the freshwater wetland vegetation.
20 Q. I think I may have had a little bit
21 of miscommunication with that last question.
22 You had referenced being in the areas marked
23 on Exhibit 4 as H and I post-Hurricane
24 Katrina and you referenced that the
25 vegetation there was disturbed by the

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1 hurricane. Can you describe what the
2 vegetation in those areas was like prior to
3 Hurricane Katrina or like relatively
4 immediately prior?
5 A. H and I?
6 Q. Yes.
7 A. H and I, as I remember, when I went
8 out there it was a more robust forest. It
9 was very -- when the MRGO levee failed, that
10 forest was highly disturbed.
11 Q. Okay. And how recently prior to
12 Hurricane Katrina had you been out to visit
13 those areas?
14 A. Well, I've been in this general
15 area, I've been conducting research almost
16 continuously for the last two decades.
17 Q. Okay. So you regularly viewed the
18 Central Wetlands Unit, the vegetation in that
19 area?
20 A. Well, I was referring to this whole
21 area (indicating). We carried out a study in
22 the southern part of the Central Wetlands
23 Unit for a period of five years looking at
24 what I would call accretionary dynamics.
25 Then we carried out a study in the late '90s

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1 in this area. Then down in this part of the
2 area I've been working almost continuously on
3 a study looking at the effects of river
4 diversion into this area in the last two
5 decades almost (indicating).
6 Q. And that study you're referencing
7 on Exhibit 4, the area marked D?
8 A. D and T.
9 Q. And T. Okay.
10 A. And also off of this map
11 (indicating).
12 Q. Off of this map --
13 A. Well, I mean, to the southwest.
14 Q. Okay. And I think you had said
15 before with respect to the triangular area
16 near the section marked B, the Exhibit 4 was
17 something that was prepared with respect to
18 St. Bernard Parish. So is the boundary line
19 that we see on the southwest corner, is that
20 the parish boundary?
21 A. Yeah. It runs just -- it runs
22 between B and the triangular area
23 (indicating).
24 Q. And then farther south from that --
25 I just want to make sure I understand that

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1 this map cuts off -- it only represents St.
2 Bernard Parish?
3 A. St. Bernard Parish, that's right.
4 Q. And what parish is located in
5 between St. Bernard Parish and the
6 Mississippi River?
7 A. Plaquemines Parish.
8 Q. Okay. But that area is not
9 reflected on Exhibit 4?
10 A. That's right. Except in the sense
11 that it is identified in writing here,
12 between showing the parish line.
13 Q. Okay. And the study that you
14 referenced a minute ago about river
15 diversions in areas D and T on Exhibit 4,
16 that also included some areas in Plaquemines
17 Parish?
19 Q. Okay. I think I want to go through
20 some more questions, but now that we have
21 introduced Exhibits 4 and 5, if, as we go
22 along, it is helpful to refer to the maps to
23 explain your answers, please do that.
24 A. Okay.
25 Q. Okay. So prior to the break, we

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1 were discussing the opinion that you stated
2 written on page 2 of your report regarding
3 the influx of saltwater into the cypress and
4 water tupelo swamps. And you had been
5 describing what you based that opinion on.
6 We discussed the salinity studies that you
7 referenced and then you also referenced pre-
8 and post-MRGO maps of vegetation communities.
9 Could you tell me what maps you were
10 referring to.
11 A. Well, there are a series of maps in
12 the Coastal Environments report. This is Day
13 4, Exhibit Day 4, there are a series of maps
14 in there showing vegetation distribution pre,
15 prior to, and after MRGO.
16 Q. And those were the maps that you
17 used in forming your opinion for this case?
18 A. Well, and then there are a series
19 of maps. These are a separate series of maps
20 produced by USGS (indicating). There is a
21 series of maps by, of the whole Louisiana
22 coastal zone looking at coastal vegetation by
23 Chabreck and Linscomb and others. And they
24 all show generally the same thing, that prior
25 to MRGO, this area of the Central Wetlands

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1 Unit and this area in the upper was much
2 fresher area supporting a cypress swamp and
3 after the MRGO, due to saltwater intrusion,
4 those freshwater areas were killed and either
5 went to open water or were replaced by more
6 saline vegetation.
7 Q. Okay. Did you review any maps that
8 reflect which areas became open water and
9 which areas became saline vegetation?
10 A. Yes. Several things happened.
11 One, vegetation was lost because spoil was
12 placed directly on top of it. Vegetation was
13 lost because it was dredged, turned into
14 MRGO. So it went from vegetation to open
15 water or vegetation to spoil. Fresher
16 vegetation was lost because of saltwater
17 intrusion. And some of that vegetation
18 turned into open water and some of it turned
19 into more saline vegetation.
20 Q. Okay. And do you have any maps
21 that illustrate what turned into saline marsh
22 as opposed to what --
23 A. There are a series of reports where
24 a number of values for acreages for all of
25 those different conversions are given and

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1 they all come up with similar figures.
2 Q. And what reports were those?
3 A. Well, there's the Gagliano's
4 report. There is a report EPA St. Bernard
5 Parish Report 1999 that talks, gives values.
6 What were the others? And perhaps others.
7 Q. The first one you referenced, were
8 you pointing to the document from which
9 Exhibit 4 came?
10 A. Yeah. Yeah. It's the document
11 included in Day 4. And then there's, as I
12 say, the 1999 EPA, I think it's EPA
13 Department of Natural Resources St. Bernard
14 Parish report. And those are the main places
15 where values were given for areas of wetland
16 change in that area.
17 Q. And are those -- did you review
18 both of those reports in preparation of your
19 expert report?
20 A. Yes.
21 Q. And did you review any other
22 reports?
23 A. We -- well, I mean, I coupled that
24 with reviews on salinity and wetland habitat
25 change to come to the conclusion that MRGO

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1 caused saltwater intrusion and caused the
2 loss of the freshwater vegetation.
3 Q. Okay. Right. My last question was
4 not very specific, but in addition to the two
5 reports you referenced that give values or
6 try to calculate the amount of wetlands
7 change and the amount of wetlands lost, you
8 reviewed those two reports, but not any other
9 ones for this purpose?
10 A. Well, I mean --
11 MR. ANDRY:
13 question.
14 You can answer.
15 THE WITNESS:
16 You know, it is looking for
17 salinity data pre- and post-MRGO
18 and vegetation data pre- and
19 post-MRGO. These maps were
20 produced in these two reports, but
21 then there are discussions in these
22 other reports, Rounsefell's report,
23 the Texas A & M's reports, of
24 generally what the community looked
25 like.

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2 Q. Okay.
3 A. So I'm basing my, these opinions on
4 all of this literature.
5 Q. Right. Okay. But with respect to
6 the -- you listed two reports that give
7 values. Those are the only two reports that
8 give numbers that you reviewed in preparation
9 of your expert report?
10 A. We used a lot of values. Those are
11 the two that come to mind.
12 Q. Okay. Your report refers to the
13 cypress habitat being quickly and directly
14 killed. Can you describe what you mean by
15 those words?
16 A. Over, you know, a few years, one to
17 two to three years, as opposed to decades or
18 even centuries, there was a very rapid
19 conversion, loss of the cypress swamp, due to
20 the salt intrusion after MRGO was
21 constructed. The salt came in, it killed the
22 freshwater vegetation.
23 Q. And where -- how do you -- where do
24 you get that time frame from?
25 A. Based on the maps that are

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1 available. Based on the discussions with
2 people that are out there. Based on the
3 salinity tolerances of cypress to measured
4 salinity afterwards. The kill would have
5 been very rapid on the order of months to
6 just a few, one or two or three years versus,
7 as I say, a much longer progression.
8 Q. Okay. Beginning on page 6 of your
9 report, you have a section titled
10 "Development of the Mississippi Delta." And
11 is it a correct understanding of that section
12 that you are describing the natural process
13 by which the Delta area develops and then
14 also deteriorates?
15 A. That's right. Yeah. On page 6.
16 And then on page 8 we begin talking about
17 Delta deterioration.
18 Q. Right. So page 8. And, okay, so
19 could you describe -- you say in your report
20 that there are a number of factors that
21 contribute to the manner in which the Delta
22 develops and deteriorates. Could you
23 describe what you mean?
24 A. Under natural conditions, the Delta
25 develops as the Mississippi changes course,

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1 as it does, you know, on the order of
2 centuries or millenia. It changes, it makes
3 these major changes in course. And as one
4 new lobe begins to form, the old lobe begins
5 to deteriorate as subsidence takes place and
6 as freshwater is preferentially put in
7 another area. These changes take place over
8 really long, centuries-type of change. And
9 so that's the process, very simply put, the
10 process the Delta is built. Now, but the
11 important thing here is since the Delta
12 formation started about six thousand years
13 ago, there was a net growth of the Delta. It
14 was developing in certain areas and
15 deteriorating in other areas, but there was a
16 net overall growth starting at basically
17 zero, six millenia ago, up until about, to
18 about 25,000 square kilometers at the
19 beginning of the 20th century. Then there
20 was a major change due to human activities.
21 So the important thing to understand, in the
22 natural stage these changes take place rather
23 slowly. And then once humans get into the
24 act and isolate the river from the Delta and
25 change hydrology dramatically, then it

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1 accelerates the loss. And that occurs on the
2 time scale of, say, decades.
3 Q. Okay.
4 A. And MRGO is not the only example
5 where a navigation channel was cut from the
6 coast, high salinity water, into freshwater
7 area, where very dramatic saltwater kill
8 occurred. That occurs on the order of months
9 to one to two to a few years. So you have a
10 maximum of a few years, decades, centuries,
11 to millenia. So what's clear in this case is
12 that MRGO went in, you had this rapid change
13 in salt, that killed the freshwater
14 vegetation. So the speed at which it has
15 happened and the spatial pattern that it
16 happened in make it clear that the MRGO was
17 the element here.
18 Q. Could you describe some of the
19 other human factors that you have just
20 referenced.
21 A. There is isolation of the river
22 from the Delta. There is a massive change of
23 the internal hydrology. And MRGO is an
24 example of that. There's enhanced subsidence
25 due to withdrawal of oil and gas or saltwater

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1 intrusion as a result of those changes in
2 hydrology. And the isolation of the river
3 from the Delta. Those are the major ones.
4 An important point in understanding
5 this, as several authors have pointed out, is
6 that the existence of these old ridges, like
7 the La Loutre Ridge, were very important, was
8 referred to as the skeletal framework. And
9 this thing, all of the high land in south
10 Louisiana are all river channels, other than
11 that which was made by human activity by
12 dredging, and those provided a protection for
13 these fresher areas that were in the upper
14 basin. So when the La Loutre Ridge was cut,
15 that allowed freshwater, uh, saltwater to
16 come directly in, where beforehand it hadn't.
17 And that's happened several times in the
18 Delta. So it is a commonly observed way of
19 killing freshwater vegetation, allowing the
20 salt in.
21 Q. It's happened several times in
22 which delta?
23 A. Well, for instance, the Houma
24 Navigation Channel, we had similar cypress
25 kill. The Calcasieu Ship Channel over in

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1 western Louisiana had massive death of
2 freshwater marshes over there.
3 Q. Where is the Houma Channel?
4 A. The Houma Navigation Channel runs
5 more or less from the Gulf of Mexico up to
6 the city of Houma west of Bayou, I think,
7 Petite Bayou, but I'm not sure.
8 Q. And where is that in relation to
9 New Orleans?
10 A. Houma is to the west.
11 Q. Okay.
12 A. Roughly south of Lafayette maybe,
13 Thibodaux, Baton Rouge.
14 MR. ANDRY:
15 It is in Lafourche Parish.
16 THE WITNESS:
17 Yeah.
18 MR. ANDRY:
19 Lafourche or Terrebonne.
20 THE WITNESS:
21 Yeah. So I guess my point is is
22 this death of this vegetation due
23 to saltwater intrusion here fits
24 into a larger pattern that we've
25 seen a number of times, very clear

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1 kind of result and recognized over
2 and over.
4 Q. Okay. When you talk about the
5 Delta formation as a whole, you have
6 referenced the freshwater, by that are you
7 referencing the river, the Mississippi River
8 water?
9 A. Well, there are two major sources
10 of freshwater in the natural Delta. One is
11 the river itself, which is flowing over its
12 bank. It is using old channels and, you
13 know, there is a whole myriad of channels.
14 And then there is also the rainfall that
15 falls on the Delta itself. And it falls and,
16 you know, is concentrated in these upper
17 basins. That, tied into these old
18 distributary ridges, like the Bayou La Loutre
19 Ridge, prevent saltwater intrusion. So even
20 in areas that have, where the river is no
21 longer flowing in in a major way, the
22 rain-fed areas concentrate freshwater in
23 these upper basins and they are protected
24 from the saltwater intrusion by the integrity
25 of these old ridges.

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1 Q. Would you describe what you mean
2 when you reference "the pulsing paradigm" on
3 page 6 of your report?
4 A. This means the input of river water
5 and generally the processes that take place
6 in the Delta are not constant over time. You
7 know, for instance, you'll have a huge river,
8 major river flood that two or three times a
9 century which under natural conditions fed
10 water far and wide and sediments and
11 nutrients, and then, as opposed to the annual
12 river flood when the river changes courses.
13 That's one of the ideas of the pulsing. The
14 water goes from one major area to another
15 major area. The river would partially escape
16 its banks from time to time in what's called
17 crevasses. And these are very clear on the
18 maps. In this area down here, there were a
19 number of them identified (indicating).
20 Q. Can you show any of them on Exhibit
21 4 or Exhibit 5?
22 A. Well, for instance, this is an old
23 channel. In Exhibit 5 there -- on the 1978
24 map, there are a series of green ridges with
25 green lines. Those are old channels where

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1 the river regularly left its course, channel,
2 the major channel and flowed out into the
3 wetlands. So the river could change course
4 like this and make a completely new river
5 over here (indicating). And that happened
6 from time to time, but also these what's
7 called crevasses where the breakout is not as
8 big and it functions for a few years, a few
9 decades, and it seals itself off, and these
10 are called crevasses. And that was a very
11 common way that river water was introduced
12 into these river basins.
13 Q. And does that still occur?
14 A. It occurs -- the only place it
15 occurs now is down south on the river where
16 the levees stop.
17 Q. Okay. So the levees that are
18 currently --
19 A. The flood control -- the
20 Mississippi River flood control levees.
21 Q. I'm sorry. Go ahead.
22 A. Stop the introduction of river
23 water until you get down south of here when
24 the levees end. And then you can see in
25 photos it flowing out again.

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1 Q. Okay. And do you know when those
2 levees were constructed?
3 A. Well, levee construction started in
4 the 18th century, but the modern integrated
5 flood control levee system was put in place
6 after the 1927 flood.
7 Q. Did the levees that were, that
8 began being constructed in the 18th century,
9 did those contribute to preventing the
10 development of these crevasses that you
11 described?
12 A. Yeah, but -- yes, they did
13 certainly in places, but that levee, until it
14 was integrated into this major federal flood
15 control program, it just failed repeatedly.
16 Q. Okay. And since the federal flood
17 control levees along the river were
18 constructed after the 1927 flood, has there
19 been any flooding of the river or crevasses
20 that allow the freshwater --
21 A. Into this area (indicating)?
22 Q. Yes.
23 A. No. There is now a river
24 diversion, an artificial re-introduction of
25 the river water at this point at a place

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1 called Caernarvon. I'm pointing to this
2 square body of water in the 1978 map in Day 5
3 (indicating). And that is reintroducing
4 freshwater.
5 Q. And do you know when that was
6 created?
7 A. That was 1991.
8 Q. 1991. Are there any other
9 diversions that --
10 A. There is a small diversion in the
11 Central Wetland Unit called the Violet
12 Siphon. It introduces water from the
13 Mississippi River into this area
14 (indicating). So that's been active for
15 several decades. I don't remember when it
16 was actually constructed. Then the Gulf
17 Intracoastal Waterway plus the Inner Harbor
18 Navigation Canal and the locks on the
19 Mississippi River enter the Inner Harbor
20 Navigation Canal and the Gulf
21 Intracoastal Waterway would have allowed some
22 low level of regular introduction of river
23 water into the upper part of this basin
24 (indicating).
25 Q. Okay. Is the elevation of the

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1 river higher than the elevation of the water
2 in the IHNC?
3 A. Yes. It would be higher all the
4 time, anywhere from a few feet up to 20 feet.
5 Q. Okay.
6 A. Because this is at sea level out
7 here in the river water.
8 Q. Okay. And just to be sure we're
9 clear on the record, I'm not sure if we used
10 only the letter acronyms, but when we say
11 IHNC, that means --
12 A. The Inner Harbor Navigation Canal.
13 Q. Okay. And the GIWW?
14 A. Gulf Intracoastal Waterway.
15 Q. Other than the construction of
16 levees alongside the river, has there been
17 other human activity that has limited the
18 amount of river water that comes into the
19 Central Wetlands Unit or this other, these
20 other wetlands areas that you've been
21 referencing?
22 A. Other than the construction of the
23 Mississippi River levees?
24 Q. Uh-huh.
25 A. No. But it's the balance we're

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1 talking about. For instance, the Gulf
2 Intracoastal Waterway was 12 feet deep and
3 300 feet wide. When MRGO was built, its
4 cross-sectional area increased by a factor of
5 12, and with this additional channel, so what
6 changed at that point was the balance of
7 saltwater coming in from the south and
8 freshwater coming from the top. It was the
9 saltwater introduction which was so much
10 greater, not a reduction at that point in
11 time of freshwater coming into the system.
12 Q. Right. You've described the
13 freshwater reduction occurred much earlier,
14 is that right?
15 A. That's right. And when this, the
16 La Loutre Ridge, was intact, the introduction
17 of rain water into this area was held in that
18 area because it couldn't flow out as quick
19 (indicating) and the introduction of
20 saltwater was greatly retarded because of the
21 La Loutre Ridge. So when you cut the La
22 Loutre Ridge, it was the balance that was
23 changed, not the amount of freshwater coming
24 in, it was the saltwater that completely
25 overwhelmed it at that point.

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1 MR. ANDRY:
2 Off the record.
3 (LUNCH RECESS)
4 VIDEOGRAPHER:
7 Q. Dr. Day, beginning on page 9 of
8 your report, you list a number of factors
9 related to human activity that you say led to
10 the massive loss of wetlands. I would just
11 like to go through these. The first one you
12 have listed here is "Flood-control levees
13 along the Mississippi River resulted in the
14 elimination of riverine input to most of the
15 Delta."
16 Does that cover what -- can you
17 explain what you meant by that?
18 A. That was done in two ways, one, the
19 construction of flood control levees along
20 the main stem of the river, and second was
21 the closure of old channels, old
22 distributaries, as they are called.
23 Do you know what a distributary is?
24 Q. Is that what -- you can go ahead
25 and explain it.

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1 A. It's a -- in the upper basins of a
2 river you have tributaries that come together
3 to form the river. When you get down to the
4 delta, they spread out again and those are
5 distributaries, they distribute the water in
6 the delta. So both of those things were
7 happening. The water was flowing out over
8 the levee as crevasses, and also a lot of the
9 old distributaries were functioning when the
10 system was natural.
11 Q. Okay. And it was the levees that
12 cut off both of those things?
13 A. Well, yeah. In some of the cases,
14 they are control structures. For instance,
15 there's a pumping station on Bayou Lafourche,
16 but mostly the levees, yeah.
17 Q. Your second item listed on page 9
18 is connected to what you just referenced with
19 Bayou Lafourche. You say, in addition --
20 A. What's that, page -- I'm just
21 changing --
22 Q. Page 9. Those factors you have
23 listed there, the second one, you reference
24 the closure of distributaries, crevasses
25 being eliminated and the river mouth made

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1 more efficient for navigation. Can you
2 elaborate on that? I think you've already
3 referenced the distributaries and the
4 crevasses.
5 A. Yeah. This was all part of
6 separate, isolating the river itself from the
7 deltaic plain.
8 Q. Okay. And can you explain how the
9 navigation, making the river more efficient
10 for navigation, can you explain that?
11 A. Well, since all the water is
12 contained in the river, and then the main
13 navigation channel, the Southwest Pass is
14 built far out in the Gulf, all this water and
15 sediment is emptied into the deep Gulf now,
16 so it doesn't get back into the Delta.
17 Q. So it, earlier, prior to the
18 construction of the levees along the river,
19 that sediment would have been emptied more
20 into the wetlands surrounding the river?
21 A. Well, this is a process that
22 started two centuries ago or more where
23 progressively the levees were built, rebuilt
24 when they failed. Distributaries were
25 closed. The mouth of the river was made more

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1 efficient. All of these things combined to
2 progressively reduce the amount of river
3 input to the Delta plain.
4 Q. Okay. And you include in your
5 report that the Bayou Lafourche distributary
6 was closed in 1900 and the Bayou Manchac was
7 closed much earlier. Do you know when that
8 one was closed?
9 A. Bayou Manchac was closed, I think,
10 sometime in the first half of the 19th
11 century. I don't know the date.
12 Q. Okay. The third item you have
13 listed on page 9 is a "reduction of the
14 suspended sediment load in the Mississippi
15 River caused by dam construction upstream."
16 Could you explain that?
17 A. So there's less sediment coming
18 down the river that's being trapped in dams,
19 behind dams, for the most part.
20 Q. Are there specific dams?
21 A. Well, mostly it is the Missouri
22 River dams. Most of the sediments that come
23 from the Mississippi River comes from the
24 west. Most of the water comes from the east.
25 So it's the Missouri River dams where the

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1 sediment retention is.
2 Q. Okay. And do you know when those
3 dams were constructed?
4 A. Well, they were constructed over a
5 century probably.
6 Q. Which century?
7 A. Well, beginning now. Probably even
8 the latter part of the 19th century, but
9 mostly the 20th century.
10 Q. Okay. Can you be anymore specific
11 with the most -- the earliest dam
12 construction?
13 A. No, I can't.
14 Q. Okay. And by "suspended sediment
15 load," could you explain what that term
16 means?
17 A. It's the nondissolved material
18 that's in the river. It's what makes it look
19 muddy.
20 Q. And is that what -- I think you had
21 referenced earlier that carries nutrients?
22 A. No. Well, some of the nutrients
23 are attached to the sediments, but most of
24 them are dissolved in river water.
25 Q. Okay. So it's the water itself

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1 that provides the nutrients to the whatever?
2 A. Well, it is a combination of the
3 two because there are nutrients associated
4 with the sediments and there are dissolved
5 nutrients. So there are both of those.
6 Q. Okay. Your fourth item on page 9,
7 the fourth bullet point, references canals.
8 And I guess could you explain what you're
9 referring to in that bullet point with the
10 construction of canals.
11 A. Well, canals are straight, deep
12 channels with spoil banks on the side from
13 the excavated material. And so they alter
14 the hydrology. The hydrology used to flow
15 mostly through these twisting tidal channels
16 that were shallow. So you make a deep
17 straight channel and you change the
18 hydrology, both the way the water flows in
19 the channels and the way the water flows
20 across the wetlands. It reduces across
21 wetland flow, which is very important, and it
22 increases channelized flow.
23 Q. Can you explain why the cross flow
24 is so important?
25 A. Well, I mean, a lot -- all sorts of

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1 biogeochemical and ecological and biological
2 processes take place in the wetland and they
3 depend on the relative amount of aerobic and
4 anaerobic conditions, the nutrients that are
5 available in there, how the wetland drains,
6 how fish can move across the surface of
7 wetlands. It is so fundamental. The surface
8 flow hydrology in the wetlands is so
9 fundamental to their functioning and then
10 this canal network changed all that. And so,
11 you know, there's whole literature on that.
12 And it's important to distinguish between,
13 say, short canals associated with oil fields,
14 for instance, and they narrow, dead-end kind
15 of thing, and these big canals like MRGO,
16 which connect the freshwater end of the canal
17 in the freshwater wetlands with the deep high
18 salinity waters of the Gulf. That's the way
19 you can distinguish the salinity introduction
20 that kill the cypress forests in the Central
21 Wetland Unit, for instance.
22 Q. Okay. So if I understand what you
23 just said correctly, the construction of a
24 number of canals for different purposes, not
25 just something like the MRGO for navigation

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1 or a deep draft navigation channel, but there
2 are two different impacts that the canals
3 have, and you're saying that the larger
4 canal, like the MRGO, affects the hydrology
5 as well as the salinity, but the other canals
6 in addition to the MRGO have an impact on the
7 hydrology of the area?
8 A. Yeah. And depending on where you
9 are, it would depend on the relative
10 importance of those. Whereas the MRGO, in
11 this area, the study area, the MRGO
12 (indicating) was overwhelmingly important
13 because it was so big and so direct, it just
14 overwhelmed the rest of these factors.
15 Q. Okay. Can you -- you mentioned oil
16 and gas canals. Are there canals dredged for
17 other purposes?
18 A. They are dredged for drainage, they
19 are dredged for navigation, they are dredged
20 for oil and gas, they are dredged for
21 trapping, but the vast majority of them are
22 done for oil and gas activity.
23 Q. Okay. Do you have any -- I guess
24 maybe with reference to the map on Exhibit 4,
25 can you point to any general locations of

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1 where these oil and gas canals are
2 constructed? Or if Exhibit 5 is easier.
3 A. Well, the only two canals you can
4 see on this map are the MRGO (indicating) and
5 the Gulf Intracoastal Waterway. What you
6 would see if you had a photo of this area
7 would be, there would be other canals in here
8 mostly associated with oil and gas.
9 Q. Okay. And are those disbursed
10 throughout the study area?
11 A. I think you could generally say
12 that.
13 Q. Okay. And you mentioned canals for
14 trapping. Is --
15 A. Well, you've asked me for examples,
16 but those are very minor, they are called
17 trainasses, take a small boat or pirogue or
18 something, but in comparison to these largest
19 ones, they are not, but it is part of the
20 categories that people dug canals for.
21 Q. And that's basically sort of access
22 for hunting?
23 A. Hunting, trapping, that kind of
24 activity.
25 Q. Okay. All right. Your fifth

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1 bullet point on page 9, the bottom one on
2 page 9, references spoil banks. Can you
3 describe what that bullet point is.
4 A. Well, it's the same thing I said
5 about the other canal. The spoil bank is the
6 material put on the side and it forms like a
7 little dike, a little restriction of
8 freshwater, the water flow over the surface
9 of the wetlands. And hurricanes can overtop
10 them easily, but for most hydrological water
11 level changes due to tides and frontal
12 passages and things like that, they form a
13 barrier.
14 Q. Okay. And can that result in --
15 I'm not sure if you've mentioned it today or
16 in your report, but is that what people refer
17 to as impoundment?
18 A. Well, canals, if they -- they can
19 connect up to accidentally impound an area.
20 A number of impoundments in the coastal zone
21 are also purposefully done for various
22 reasons.
23 Q. Can you give an example of that?
24 A. Water fowl management. To try to
25 enhance drainage. To favor one vegetation

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1 growth over another.
2 Q. How would it work to favor one
3 vegetation over another?
4 A. Well, for instance, if you were, if
5 you were to drain the area more often, you
6 would favor less flood-tolerant vegetation
7 over more flood-tolerant. If you had a
8 freshwater head, you could try to drain it to
9 increase -- decrease salinity inside to favor
10 fresher vegetation. You can hold water level
11 in and clear up the water so that submerged
12 aquatic vegetation, what you would call
13 seaweed, grows and that attracts ducks. They
14 have done it for all sorts of reasons.
15 Q. I see. So it's an intentional
16 effort to control the water in a particular
17 area?
18 A. More than anything else, you are
19 managing water level, and by doing that,
20 you're trying to manage tepidity of the
21 water, salinity of the water, level of the
22 water.
23 Q. Okay. And is that something
24 that -- can you give any description of the
25 kind of number of areas or acres or frequency

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1 that these types of impoundment areas are
2 created?
3 A. I actually published a paper with
4 my brother about ten or 15 years ago, and
5 it's something on the order of 25 to 30
6 percent of the coast is impounded to some
7 extent.
8 Q. Okay. Okay. Now, I'm seeing where
9 -- I knew I had seen impounded somewhere. At
10 page 10 at the end of your bullet point, you
11 reference that these spoil banks and other
12 things have caused much of the area to be
13 semi-impounded. Is that -- by
14 semi-impounded, is there a difference between
15 impounded and semi-impounded?
16 A. Well, semi-impounded means it is
17 not completely controlled.
18 Q. Okay.
19 A. And this area we're talking about
20 is the Pontchartrain Basin. In this case,
21 that's what we're referring to.
22 Q. Okay. That's one of the things I
23 wanted to ask you. You've referenced a few
24 specific places. South Slough?
25 A. South Slough --

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1 Q. Sorry?
2 A. South Slough is located, since we
3 don't have a map, it is located --
4 Q. Is it outside the boundaries of
5 this map?
6 A. Yes. It is in the Pontchartrain
7 Basin. It's -- you know where Lake
8 Pontchartrain and Lake Maurepas are?
9 Q. Yes.
10 A. On the other side of New Orleans,
11 north of New Orleans.
12 Q. Roughly?
13 A. The two lakes are here and here
14 (indicating) and then they are connected by
15 Pass Manchac. South Slough is a canal on the
16 upper end of the wetlands right there between
17 the two lakes (indicating). And what it's
18 done is taken water and short-circuited it,
19 which used to flow down in the wetlands, it
20 is short-circuited through a canal. So
21 freshwater that used to enter the wetland up
22 there is now short-circuited away and they
23 are having problems with saltwater intrusion.
24 It is another example of a different kind of
25 saltwater intrusion like we've seen in the

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1 Central Wetlands Unit.
2 Q. I see. So the South Slough -- is
3 that how it is pronounced?
4 A. South Slough, yes.
5 Q. So that, does that impact the
6 wetlands area that your report focuses on?
7 A. No. No. We just gave it as an
8 example.
9 Q. Okay. And what about the highway
10 embankment on I-55, where is that located?
11 A. None of these influence this area.
12 We were just -- we were talking at this point
13 about the entire Pontchartrain Basin and
14 giving some examples to illustrate what we
15 were talking about.
16 Q. Okay. Are there any highways or
17 other of this sort of feature that is
18 referenced on the top of page 10 in --
19 A. One would be here (indicating).
20 This is on page 3 of the second page of Day
21 4. The area between where there's a B and
22 the small triangle, that's where the New
23 Orleans main, New Orleans sewage treatment
24 plant is.
25 Q. Okay.

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1 A. And so they built, there is a
2 linear feature of land which was built
3 because of the deposition of solid material
4 produced in the treatment process. And so
5 that's pretty much isolated this little
6 triangular area, for instance.
7 Q. And does that sewage plant
8 discharge water into this area?
9 A. No. It's pumped to the river.
10 Q. Okay. Are there other sewage
11 discharges into the wetlands area?
12 A. Yeah. There's one -- there has
13 been one historically right in this corner of
14 the Central Wetlands Unit adjacent to the F.
15 And the only place that cypress exist in this
16 big area is there because there was a pumping
17 station forced drainage. You know what that
18 means?
19 Q. No.
20 A. In Louisiana where we have levees
21 around an area and they pump it out so people
22 can live there, it is rain water they pump
23 out. And there is also a sewage treatment
24 there, a pond, an oxidation pond, and that
25 freshwater from there maintained an area of

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1 about a hundred acres of cypress swamp. And
2 this whole area where saltwater from MRGO
3 killed the cypress swamp. So it is
4 illustrative of what we're talking about, how
5 a little bit of freshwater can go a long way,
6 but -- so --
7 Q. Okay. And just to make sure that
8 the record is clear, you're referencing
9 Exhibit 4 in the area located in the part
10 marked C, but just east of the letter F on
11 that map, is that correct?
12 A. Yes.
13 Q. And that's where there is
14 approximately a hundred acres of cypress
15 trees?
16 A. Yes. And it is still there.
17 Q. So are you saying that the sewage
18 discharge, that's freshwater that gets into
19 that area?
20 A. Yes.
21 Q. Okay.
22 A. It's treated sewage, and so it's
23 not raw sewage.
24 Q. Is there any raw sewage that is
25 discharged into these waters?

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1 A. If it is, it's not legal and it is
2 very minor. No. Most of the sewage
3 treatment in this area is pumped to the
4 river.
5 Q. Okay. You've referenced also the
6 development of area and drainage of areas in
7 order to develop it for people to live.
8 A. Yeah. To mainly protect against
9 flooding, you know, otherwise you could have
10 flooding.
11 Q. Okay. Flooding from rain water you
12 mean?
13 A. Yeah. Or, well, these levees also
14 protect against hurricane flooding or they
15 should, but because the developed area in St.
16 Bernard Parish is included in a levee, rain
17 won't run off as it would normally, so they
18 pump it out.
19 Q. And do they pump it into the
20 Central Wetlands Unit?
21 A. Yes, they do. One of their big
22 pumping stations is right there by that F
23 that I talked about.
24 Q. Okay. So that remains one source
25 of freshwater that's still pumped into the

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1 area?
2 A. Yes. That perfectly illustrates
3 what would have happened if we could have
4 maintained the fresh/salt balance in that
5 area.
6 Q. Okay. Other than what you listed
7 beginning on page 9 of your various factors
8 that lead to a loss of wetlands, are there
9 additional things that are not listed on page
10 9?
11 A. No, not any major things, but I
12 think if I could summarize, I mean, the
13 rapidity of which the loss of the cypress
14 occurred and the change in salinity, the
15 change in the vegetation communities, it
16 allows us to take this group of things, all
17 of these forcings, and determine then which
18 one was the major cause in this area. And
19 because of the rapidity of it, I mean, months
20 to a couple years versus decades or
21 centuries, and the change of salinity clearly
22 points to the MRGO allowing saltwater
23 intrusion into the area as the cause of this
24 massive wetland die-off rather than these
25 other causes.

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1 Q. Okay. And would you explain again
2 where you got the measurement of months to a
3 couple of years.
4 A. Well, it was -- you know, the maps
5 show that prior to MRGO it was a freshwater
6 area, freshwater swamp, freshwater marsh, and
7 after MRGO it was a brackish or saline marsh.
8 And looking at those maps and talking to
9 people who lived down there, that occurred
10 very quickly. It occurred in the early
11 sixties. And which points clearly to the
12 salt effect.
13 Q. So you've spoken with people that
14 lived in that area in the early sixties?
15 A. Lived in that area, that's right.
16 And also just the knowledge of how cypress
17 responds to higher salinity levels. A salt
18 death is very rapid in cypress, just like any
19 freshwater vegetation.
20 Q. Can you give me an example of some
21 of the plants that grow in the brackish
22 marsh?
23 A. The primary one is Spartina patens.
24 It is a species called wiregrass. If you
25 knew marsh grass, you would know it. Then

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1 also Spartina alterniflora, two species of
2 the same genera, which are very important
3 grasses that occur in saline waters, waters
4 of salinity greater than 5 or 10. There are
5 a number of others, Juncus roemerianus.
6 Q. Okay. And you've mentioned that
7 the cypress trees grow well in the freshwater
8 areas. Are there other plants that are
9 considered freshwater marsh?
10 A. Oh, yeah. In fact, the diversity
11 of freshwater plants is very high compared to
12 saltwater plants.
13 Q. And can you -- you just mentioned a
14 number that you equated with a salt marsh.
15 What was that? I think you said five to ten?
16 A. Well, above that you basically get
17 a salt marsh.
18 Q. And what is --
19 A. The salt tolerances are ranges over
20 which these plants can grow. So cypress, for
21 instance, can exist up to about three, from
22 freshwater to three, three parts per million,
23 three parts per thousand, parts of salt per
24 thousand parts of water.
25 Q. Okay.

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1 A. And above that, by the time you're
2 getting four, five, six, you are killing
3 cypress.
4 Q. And what -- I'm not sure when you
5 say three parts per thousand, is that -- what
6 do you call that, like a salinity measurement
7 or --
8 A. Well, you mean, yeah, that's the
9 salinity, that's how you measure salinity.
10 It's measured -- its values are basically
11 reported in parts of dissolved salts in a
12 thousand parts of water.
13 Q. Okay. So for -- can you give me
14 what the figures are for the different types
15 of marsh? We talked about brackish marsh.
16 A. It's not a single figure. It's a
17 range. So fresh marsh, up to about two or
18 three. And some species won't tolerate any
19 salt. Cypress will tolerate up to around
20 three and then it starts to die. And so you
21 have fresh. Then there's a group of species
22 that are called intermediate marsh, and that
23 runs from three to four up to -- I mean, the
24 ranges are given by different authors, but it
25 could be up to ten.

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1 Q. Okay.
2 A. And then the brackish could be from
3 ten or 15, I mean the intermediate. I don't
4 remember exactly, but there is no specific
5 range.
6 Q. I see.
7 A. Because these plants, you know,
8 there are other factors affecting them. So
9 fresh, zero up to around three. And
10 intermediate, say two or three up to say ten
11 or 12. Brackish, eight to ten up to say 15
12 to 20. Salt, you know, ten to 30, but salt
13 marsh, if the salinity is too high, it will
14 die out. And there are areas in certain
15 coasts where it won't live.
16 Q. Okay. I've seen descriptions
17 referencing sawgrass marsh. Is that one of
18 the ones you were just mentioning as -- or
19 sawgrass as a plant?
20 A. Sawgrass is a plant of the
21 Everglades. Cladium jamaicense.
22 Q. Is that something that was found in
23 this area?
24 A. There were extensive sawgrass
25 marshes over in southwest Louisiana that were

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1 killed by salt when the Calcasieu River
2 Channel was dredged.
3 Q. Okay. Is that a fresh marsh plant
4 then?
5 A. That's a fresh marsh species.
6 Q. Okay. So you listed a few grasses
7 as being in the brackish category, but that's
8 not exclusive to grasses grown a variety of
9 different --
10 A. It depends on the species.
11 Q. Okay.
12 A. For instance, Spartina patens is
13 the dominant species in what we call brackish
14 marsh. And then Spartina alterniflora is the
15 dominant species in what we call saline
16 marsh, but Spartina patens also occurs in
17 salt marsh, but a cypress would never occur
18 in a salt marsh or a brackish marsh. It is
19 too high, the salinity.
20 Q. I see. With respect to the maps
21 that you've been referencing, for example,
22 Exhibit 5, the colored maps, I think you said
23 that those maps are a standard way of
24 assessing the types of marsh that are in the
25 particular area.

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1 MR. ANDRY:
3 question.
4 You have to say yes or no. I
5 notice you shook your head.
6 THE WITNESS:
7 Repeat the question.
9 Q. Sorry. I guess I just wanted to --
10 if I could just start over with the question,
11 I guess. I was trying to understand how
12 these marsh types are measured and how
13 someone in your field goes about quantifying
14 the extent of marsh in a particular area.
15 Can you explain that process?
16 MR. ANDRY:
18 question.
19 You can answer if you can.
20 THE WITNESS:
21 Well, it's a combination of looking
22 at photos. It's a combination of
23 doing ground truthing. You know
24 what that means?

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1 Q. No.
2 A. Going out, and if somebody says
3 this is a salt marsh from a photo, and you
4 look and you see the right species are there.
5 Looking at salinity ranges over a whole year,
6 because you can have quite a variation,
7 winter with rainfall is fresher than the
8 summer. And certain soil characteristics.
9 So you ground truth it. And we use, you
10 know, a standard set of approaches that
11 people agree on are used. And so -- but
12 there's no line out in the marsh where you
13 would say this is where the brackish marsh
14 ends and this is where the salt marsh starts.
15 But what you do know, for instance, cypress
16 will never occur in the salt marsh.
17 Q. So how do you go from there being
18 no line out in the marsh to a map such as
19 that on Exhibit 5 that uses --
20 A. Because these are kind of
21 transition zones. You couldn't go down and
22 find a line like this big, but over an area
23 as big as this building maybe, there is a
24 transition from a group of species which have
25 been defined representing one vegetation type

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1 to a group of species representing another.
2 Q. Okay. So do you know when the
3 earliest map was created that shows the
4 different vegetation types?
5 A. There are maps from the late 1800s
6 that indicate wetlands in cypress swamps.
7 And there have been regular ones. The ones
8 we used right here was in 1956 because that
9 was well documented.
10 Q. What do you mean by well
11 documented?
12 A. Well, people went out, identified
13 the vegetation. They were able to measure
14 salinity. They were able to photo-interpret
15 it so that everyone would have agreed that
16 that was a cypress swamp, for instance.
17 Q. Okay. So are you saying
18 essentially that the technology had improved
19 by 1956 versus a map that might have been in
20 the 1800s?
21 MR. ANDRY:
23 question.
24 THE WITNESS:
25 Yes.

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2 Q. So over time then, would your map
3 that you show in 1978 be more precise than
4 the 1956 map?
5 A. I wouldn't think so, not -- not at
6 this level of detail. I mean, there's no
7 doubt about this area in the Central Wetlands
8 Unit was mostly cypress swamp, which is
9 fresh, and freshwater marsh.
10 Well-documented, well-characterized.
11 Q. Okay. I'm trying to understand how
12 these maps are created. Is it still the case
13 when the maps are created today to illustrate
14 the vegetation types? What is the process
15 for making those today?
16 MR. ANDRY:
18 question.
19 THE WITNESS:
20 I don't understand your question.
22 Q. I guess -- is there any difference
23 in technology now than there was in 1956 in
24 terms of how these vegetation maps are
25 created?

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1 A. Well, you have better, better
2 aerial imagery for sure, but, I mean, in the
3 end, it's the plants that are there, and I
4 think that's the most important thing as an
5 indicator, a general conservative indicator.
6 By that I mean it's not going to change every
7 month because the salt is changing. The
8 plants are integrating, so these annual
9 salinity patterns. And so when you see
10 Spartina alterniflora, you know that over the
11 year it has a higher salinity than when you
12 see a continuous marsh as Spartina patens,
13 which tends to come at a lower salinity.
14 Q. Okay. And how are, when you
15 referenced, for example, the hundred acre
16 area of cypress trees, how do you measure the
17 hundred acres?
18 A. Well, first, it is an estimate.
19 Q. Okay.
20 A. We've studied in that area, you
21 know. If you look out there, the part of the
22 area where the cypress trees are growing, and
23 sort of roughly put a line around it where
24 you have live cypress trees, and that's sort
25 of roughly estimated as a hundred acres, plus

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1 or minus 25 percent, something like that.
2 Q. Okay. Is that generally how all of
3 these marsh areas are measured when they are
4 described in terms of acres?
5 A. Well, when you -- they have methods
6 of digitizing these maps once they are
7 assigned into categories that you would get a
8 much more accurate number.
9 Q. Can you explain what that
10 methodology is?
11 A. Digitizing?
12 Q. Right.
13 A. Digitizing is a numerical technique
14 where you can draw a line around a certain
15 area on a map and it will tell you what the
16 area is. You can do it on Google, for
17 instance.
18 Q. But it is basically a computer
19 process that calculates the area --
20 A. Well, it is now. It used to be
21 done, you know, by hand initially.
22 Q. Okay. And is there -- you said
23 that your estimate of the hundred acre, you
24 might have a plus or minus 25 percent. Is
25 there an error rate associated with

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1 measurements done through digital mapping?
2 A. There is, but I wouldn't -- I don't
3 know what it is.
4 Q. Okay. In terms of measuring change
5 over time, that process relies on comparison
6 of maps?
7 A. That's right.
8 Q. Comparison of maps over different
9 years?
10 A. That's right. A map or an image of
11 some kind.
12 Q. Like a photograph?
13 A. Yeah.
14 Q. Okay. You have mentioned in your
15 report a few figures that I'd like to ask you
16 about, figures, I mean, numbers of acres.
17 For example, on page 4, sort of in the middle
18 of the page, you say greater than 12,000
19 acres of the swamps in the Central Wetlands
20 Unit were killed shortly after the opening of
21 the MRGO. Where does that, how is that
22 12,000 acres calculated?
23 A. That's from the Team Louisiana
24 report. They, I suspect, got it from some of
25 the same sources we did. And that, the

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1 number, it seems closest to the one most
2 people use is around 15,000.
3 Q. What do you mean by what most
4 people use?
5 A. Well, sorry. The numbers that are
6 published in this report by Coastal
7 Environments, the 1999 EPA St. Bernard
8 report, they all gave numbers indicating the
9 area of different habitats before and after
10 MRGO. And the general indication that there
11 were about 15,000 acres of cypress were
12 killed.
13 Q. Okay. And just to clarify for the
14 record, when you reference this report
15 prepared for St. Bernard, that was what
16 Exhibit 4 came from, is that right?
17 A. Yes. Uh-huh.
18 Q. And that was from 1982, is that
19 right?
20 A. Yes.
21 Q. So, likewise, then, again on page
22 4, the next sentence you reference tens of
23 thousands of wetland acres were subsequently
24 destroyed. Where do you get the number tens
25 of thousands in that report?

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1 A. Well, that's a general -- we were
2 jumping around here. When we say that, we
3 were talking about the broader Pontchartrain
4 Basin, too. It wasn't clear here -- because
5 MRGO affected salinity not only in this
6 region, but also in Lake Pontchartrain.
7 Q. How did it affect that salinity?
8 A. Because it made a direct
9 connection, MRGO, Gulf Intracoastal Waterway,
10 Inner Harbor Navigation Channel, into the
11 lake. And so the salinity in the lake itself
12 went up.
13 Q. And that impacted the wetlands
14 around the lake?
15 A. Yeah. Yes. Uh-huh.
16 Q. So when, when you say tens of
17 thousands of wetlands, that includes --
18 A. That refers to the larger system.
19 That was sort of a bit of a rhetorical
20 flourish.
21 Q. Okay. On page 11, at the bottom of
22 the page, this is page 11 of your report, you
23 again reference the tens of thousands of
24 acres, and you say the construction of MRGO
25 directly caused the destruction of tens of

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1 thousands of acres of wetlands and led to the
2 indirect death of tens of thousands of
3 additional acres of wetlands. The second
4 half of that sentence, the indirect death of
5 tens of thousands, is that what you
6 just referenced with the salinity and the
7 larger area?
8 A. Yes. That would include the death
9 of fresh vegetation in Central Wetland Unit
10 and in a much larger area.
11 Q. Which includes the area surrounding
12 Lake Pontchartrain?
13 A. Yes. That's right.
14 Q. Okay. And what about the first
15 part of that sentence, can you explain where
16 that comes from?
17 A. That comes from the direct
18 placement of the spoil from the construction
19 of the canal itself and from the filling of
20 water bodies that were once open.
21 Q. Which water bodies do you mean?
22 A. Well, sorry. That would be even in
23 addition to that. So you have -- it's
24 basically the direct placement of spoil along
25 the MRGO from all the way up almost to the

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1 river down all the way out to Breton Sound,
2 Chandeleur Sound.
3 Q. Okay. And can you be any more
4 specific than tens of thousands?
5 A. I'd have to look it up.
6 Q. Do you know where you originally
7 got that from?
8 A. We developed a, you know, we looked
9 at numbers of estimates in several of these
10 publications. Do you want me to try to look
11 it up now?
12 Q. If you're able to identify which
13 publication you got that from.
14 A. Well, the two main ones were the
15 CEI 1982 report, Coastal Environments,
16 Incorporated, and the EPA 1999 report.
17 Q. Okay. And to make sure I
18 understand what you mean by direct -- well,
19 could you explain what you mean as the
20 distinction between a direct cause and an
21 indirect cause?
22 A. Well, the placement of spoil, for
23 instance, there's the digging of the channel
24 itself. So you excavate the wetlands and
25 then you place the spoil and then you smother

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1 them. So those two are direct.
2 Q. Okay.
3 A. Direct causes. And, you know, I
4 can't remember the exact numbers. We've been
5 looking at them yesterday, in fact, or I was.
6 Q. Okay. Could you clarify again when
7 you talk about indirect causes?
8 A. That would be the salt kill --
9 Q. Saltwater?
10 A. -- for instance. The opening up of
11 wetlands, for instance, to more wave attack
12 from the boat traffic because MRGO widened by
13 a factor of three during its operation due to
14 these, the wakes from these big boats.
15 That's an indirect effect.
16 Q. And when you say it widened by a
17 factor of three --
18 A. Something like that, yeah.
19 Q. -- do you mean the entire length of
20 the channel?
21 A. Well, along much of it there was a
22 significant widening, let me just say.
23 Q. Okay.
24 A. And I think in some cases it was up
25 to -- it went from 1,000 to 3,000 feet.

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1 Q. Okay.
2 VIDEOGRAPHER:
3 Excuse me. Go off the record to
4 change tapes. It is the end of
5 tape 2. We are now going off the
6 record.
7 (RECESS TAKEN)
8 VIDEOGRAPHER:
10 We're back on the record.
12 Q. We've just been going over some of
13 the numbers that you reference in your
14 report. Is it possible to -- you apparently
15 attribute the loss of certain numbers of
16 acres of wetlands to the MRGO, is that right?
17 A. The direct loss.
18 Q. Okay. And you've also attributed
19 some numbers to the indirect loss, is that
20 right?
21 A. (Witness nods head.)
22 Q. Yes?
23 A. Yes.
24 Q. With respect to the things we
25 discussed that you've listed on page 9 and 10

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1 of other factors that lead to a loss of
2 wetlands, is it possible to quantify the
3 contribution of those factors?
4 A. Well, just as a sort of rough
5 figure, about 15,000 acres of wetlands were
6 directly destroyed, either by the formation
7 of the channel or by placement of the spoil.
8 And roughly another 15,000 acres indirectly,
9 primarily the destruction of freshwater
10 vegetation by salt.
11 Q. Okay. And are you able to make
12 that sort of estimate, for example, of how
13 much the flood control levees along the
14 Mississippi River contributed to a loss of
15 wetlands?
16 A. Well, again, the flood control
17 levee issue is one that's a gradual thing
18 that goes over decades. And so this dramatic
19 loss in a short period of time, both direct
20 and indirect, can clearly be attributable to
21 the MRGO for direct destruction of habitat
22 and mainly to salinity-caused mortality
23 because it happened so quick.
24 Q. So the 30,000 acres that you just
25 referenced a few minutes ago, 15,000 direct

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1 and 15,000 indirect, those you are
2 attributing entirely to the MRGO?
3 A. Yeah, direct and indirect impacts.
4 Q. Okay. Can you explain then --
5 well, in addition to impacts from the MRGO,
6 have measurements been made of the numbers of
7 acres of wetland loss from other causes?
8 A. In this area?
9 Q. Yes.
10 A. Yeah. I mean, they have been made
11 throughout the Pontchartrain Basin. And, but
12 again, the rapidity of which these changes
13 happened coincident with the construction and
14 just post-construction clearly separates that
15 from a long-term, more gradual wetland loss
16 in the broader basin.
17 Q. Are -- can you explain the
18 measurements that have been made attributing
19 loss to other causes?
20 A. In general?
21 Q. Yes. Well, in this area. For
22 example, you have mentioned in your report
23 and discussed here today that oil and gas
24 canals are located throughout this area. Has
25 there been any measurement made of the

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1 numbers or acres of wetlands lost because of
2 those canals?
3 A. There have been, but I don't know
4 the numbers, but it's much smaller than MRGO.
5 It is much smaller than 15,000 acres of
6 direct loss. This area is on kind of the
7 flank of the Delta plain and oil and
8 gas activity was much less common in this
9 area than in the central part of the Delta
10 from, sort of west from the Mississippi
11 River.
12 Q. Okay. But there are oil and gas
13 canals and pipelines throughout this area, is
14 that correct?
15 A. Yeah, but you wouldn't attribute
16 the losses of freshwater vegetation in the
17 Central Wetland Unit to that.
18 Q. Okay. Have you -- and you -- I'm
19 sorry. I'm just trying to gather my
20 thoughts. So you said that you're not
21 familiar with the numbers, but that other
22 people have measured the contribution of oil
23 and gas canals?
24 A. Yeah. It's known fairly exactly
25 how much, what's the area of oil and gas

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1 canals that were dredged in the coastal zone,
2 and by area. Barras would have those
3 numbers.
4 Q. Okay. Are there other causes or
5 other -- have measurements been made
6 attributing loss to other causes?
7 A. In this specific area?
8 Q. Yes.
9 A. Well, my recollection is there are
10 almost no oil and gas canals in the Central
11 Wetland Unit if you look at it. You see
12 almost none in there. There are some to the
13 east and to the south, but I don't think
14 there are any in there. I'm thinking of, you
15 know, when I looked at those maps, I don't
16 recall seeing any dredge canals for oil and
17 gas in there.
18 Q. Okay. But other than oil and gas
19 and the MRGO, have measurements been made to
20 quantify loss or change in wetlands
21 associated with factors such as the lack of
22 --
23 A. Well, there are two things here.
24 One is quantifying the rate of change.
25 Q. Okay.

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1 A. All right. You do that from
2 mapping studies. Secondly is attributing
3 that loss to certain causes. All right.
4 That's a separate thing.
5 Q. Okay.
6 A. And in this case, because the MRGO
7 was so dramatic and so big and caused such
8 demonstrable effects, it's rather easy to
9 attribute most of the, well, to attribute the
10 loss of the freshwater vegetation here to
11 MRGO.
12 Q. And in general how does a scientist
13 in your field go about attributing loss to
14 other causes?
15 A. Well, you look at the pattern of
16 loss, you know, both the aerial extent of
17 certain vegetation types and what those
18 vegetation types were and you look at what
19 environmental parameters changed over the
20 period when that loss occurred, and then,
21 based on your knowledge of how these systems
22 functioned, you basically attribute loss to
23 them.
24 And in this case, you know, the
25 canal was dug, the salinity went up rather

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1 dramatically, the cypress died. It's a
2 very -- that would be a very clear case for
3 being able to attribute the loss to a certain
4 cause. And both because of the pattern of
5 that loss, the rapidity of that loss and the
6 type of vegetation habitat changes that took
7 place.
8 Q. Okay. The numbers that you gave
9 for that loss, how much of that is within
10 what you've described as the Central Wetlands
11 Unit?
12 A. I can't say quantitatively, but the
13 majority of the forested wetlands were
14 located in that area (indicating). I
15 haven't -- I don't have the numbers of the
16 exact amount, but because they would occur
17 along closest to the river, and as you moved
18 away from the river it would move into marsh
19 types, and further away would be a salt
20 marsh. And so that's just where the forested
21 wetlands were. You know, as you can see, for
22 instance, here, they are up against this
23 channel right in here (indicating).
24 Q. Okay.
25 A. They were protected. It was an

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1 area where freshwater was being pumped in or
2 rain was collecting.
3 Q. Was there -- well, I'm sorry. Why
4 did you -- you focused on the MRGO and the
5 changes caused by the MRGO. Why did you
6 include the factors listed on page 9 in your
7 report?
8 A. Well, this was constructing the
9 conceptual framework of the function of the
10 Delta and the broader questions of human
11 impact, so that within that conceptual
12 framework you can then talk about
13 specifically how MRGO affected this area.
14 Q. And how do these factors listed on
15 page 9 relate to the MRGO?
16 A. Well, the MRGO is one of the
17 factors. Well, it is related to change in
18 hydrology and altering salinity patterns.
19 And so I wanted to put down this broader
20 conceptual framework. It is as if in
21 medicine you study how the human body
22 functions, and then you can understand how a
23 specific disease affects the body. It's the,
24 it is the context of it.
25 Q. Okay. So your statement on page 10

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1 that "there is a broad consensus that wetland
2 loss is a complex interaction of a number of
3 factors acting at different spatial and
4 temporal scales," I guess does that sort of
5 summarize why you have listed the things
6 you've listed on page 9?
7 A. Yes. In other words, we listed all
8 the major factors that affect the Delta as a
9 whole and then we focus in on this area, and
10 it is clear here that this canal, by
11 affecting salinity, by changing the hydrology
12 in this particular way, and by looking at,
13 and by understanding what vegetation habitat
14 changes occurred, it's rather straightforward
15 to conclude that it was the saltwater
16 intrusion from that canal in this particular
17 case. And also you notice I say "temporal
18 scales." This happened within a couple years
19 rather than within a few decades or a
20 century. So that tells you also.
21 Q. Okay. So you're distinguishing
22 sort of the broader Pontchartrain Basin as a
23 whole and the --
24 A. And the Delta as a whole. To
25 understand how the whole Delta ecosystem

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1 functioned. That's to me necessary then to
2 understand specifically how this fit into
3 that framework (indicating).
4 Q. Okay. So when you refer to the
5 isolation of the Delta by the Mississippi
6 River levees or from the river by the levees
7 as the most important factor to the Delta as
8 a whole, I guess could you explain why you
9 consider the isolation of the river as the
10 most important factor for the Delta as a
11 whole?
12 A. Well, I mean --
13 MR. ANDRY:
16 THE WITNESS:
17 I studied deltas all over the
18 world. It is rivers that build
19 deltas. So if you didn't have the
20 river, you wouldn't have the delta.
21 So if you take away the river,
22 which we in effect have done, then
23 you put in the processes, this
24 pattern of wetland loss. And that
25 happened over a century. We lost

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1 about 25 percent of them, but then
2 if you look at different parts of
3 the delta, you begin to understand
4 the relative importance of these
5 different factors. For instance,
6 at the mouth of the Atchafalaya
7 River, wetland loss is very low.
8 The river is still going into
9 there. You can say hypothetically
10 if there were no levees here in
11 this area and water was flowing out
12 of the Mississippi every year en
13 masse, we wouldn't have seen these
14 changes, but we had the levee
15 there, and there was this long
16 gradual process taking place. Then
17 MRGO was dredged and, boom, the
18 salt comes in and kills the
19 freshwater vegetation. It is very
20 clear.
22 Q. Can you explain how subsidence
23 factors into this?
24 A. Subsidence is a characteristic
25 process in most deltaic ecosystems. And as

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1 the river over long periods, you know, this
2 occurs on centuries to millenia and even
3 longer, as the river loads sediment into this
4 deltaic land mass and vegetation grows there,
5 that creates a weight, and that undergoes
6 compaction and consolidation and dewatering
7 and it is slowly pressed down, and so it is
8 sinking. And by continual introduction of
9 riverine materials and growth of new
10 vegetation, the surface of the delta is able
11 to grow upward at the rate it's sinking. And
12 so geological subsidence is a natural
13 process. It takes place in deltas. And what
14 many, what almost all of these factors that
15 cause wetland loss do, is decrease the
16 ability of the delta through the various
17 processes going on to offset that sinking.
18 And as it sinks, it allows more saltwater
19 intrusion to come in. Saltwater intrusion is
20 a general problem in deltas, but it expresses
21 itself over the decadal to century level time
22 scale. When you see something like this that
23 happens in two or three years, something
24 other has happened, like the MRGO dredging.
25 Q. Okay. Can you explain, I think

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1 this is connected to subsidence, but maybe
2 you can explain whether it is or not, what
3 relative sea level rise refers to?
4 A. Relative sea level rise is a
5 combination of subsidence, which the land is
6 sinking, and what's called eustatic sea level
7 rise, which is the actual increase in the
8 water level of the ocean, the volume of the
9 ocean. So the two together, the sinking plus
10 the actual water level rise, creates a
11 relative water level rise.
12 Q. Okay. Is the eustatic sea level
13 rise constant everywhere?
14 A. No, it's not a constant at all. It
15 has been relatively constant over the time
16 scale of millenia since the Delta began to
17 form, since about 6,000 years ago. Because
18 about 15,000 years ago we were in the middle
19 of an ice age, sea level was about 150 meters
20 lower than it is now. It started, we entered
21 this intergalacial, the sea level rose up,
22 reaching its present level about 6,000 years
23 ago, plus or minus a thousand years, and at
24 that point the Delta formation began. We had
25 a relatively constant sea level, some

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1 variations, but no long-term trend for about
2 5,000 -- well, up until the beginning of the
3 20th century. The 20th century, the estimate
4 is about 15 centimeters were added to the
5 eustatic. It went from more or less constant
6 to 15 centimeters, generally attributed to
7 global climate change. So eustatic sea level
8 is not constant. It varies widely. It is
9 varied by hundreds of meters. And so -- but
10 over a decadal time scale or a few years, it
11 is a minor component.
12 Q. Uh-huh.
13 A. Although that may change in the
14 next century.
15 Q. Okay. You attached to your report
16 several photographs. If we could look
17 through those. Could you explain what these
18 show. I guess we could just start with the
19 first one.
20 A. Well, okay. We'll start with the
21 first one, it's number 57.
22 Q. You're referring to the MRGO
23 photos?
24 A. Yeah. It's the first one in the
25 group.

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1 Q. Uh-huh.
2 A. That shows two things. One, the
3 dredging of the channel. That's the initial
4 channel. And second, it shows the extensive
5 cypress forest was there, which no longer
6 exists. So those were the two things there.
7 Q. Where did you obtain this
8 photograph?
9 A. This was in a group of historical
10 photographs of the area that was given to us
11 on a CD.
12 Q. Given to you by the plaintiffs'
13 attorneys?
14 A. Well, I think these are Corps of
15 Engineers photos, but I got them from the
16 attorneys in this case.
17 MR. ANDRY:
18 For purposes of this record, this
19 set comes from, I think they are
20 mixed in his report, but the ones
21 that don't have the information at
22 the bottom come from the New
23 Orleans Public Library, and I think
24 the ones --
25 THE WITNESS:

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1 Yeah. These are from the Corps of
2 Engineers.
3 MR. ANDRY:
4 Like 127 are from the Corps of
5 Engineers and they describe on the
6 bottom what the picture was for.
8 Q. Okay. So the first photo that has
9 the number 57 at the bottom, do you know the
10 location of that area?
11 A. I think this is in the upper reach
12 of MRGO. This is the upper part of Reach 2.
13 I think that's that turn there.
14 Q. Okay. Do you know what that is in
15 the right? It looks like there is a road or
16 something. Do you know what that is on the
17 right? Yes, that (indicating).
18 A. I'm not sure, but I have a
19 suspicion that that might be what's -- a berm
20 is built to contain the dredge spoil and that
21 may well be -- MRGO was dredged in two
22 events, I guess you would say. They dredged
23 the small channel the whole way and then they
24 came back and widened it, which this is a
25 photo of that right there (indicating).

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1 Q. Is that something that you --
2 MR. ANDRY:
3 This is another photo from the same
4 set that shows how they dredged. I
5 was going to ask him about it. You
6 are free to use it, but, I mean, it
7 is the same photo, it wasn't
8 attached to his report, but it is
9 the same set of photos. But it
10 shows what he's talking about, how
11 there was an access channel and
12 how it all was built.
14 Q. Okay.
15 A. The purpose of these photos were
16 just to generally indicate vegetation types
17 and dredging activity and how it affected
18 those areas.
19 Q. Okay.
20 A. You can see here that they are
21 beginning in this 57, they are beginning to
22 cut the channel wider.
23 Q. Okay. And what is the next one
24 showing?
25 A. Well, that's -- I guess it is

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1 showing the arrogance of humans as they try
2 to control nature, but it is these guys
3 blowing up part of the swamp to, you know, to
4 prepare the land for dredging. You can see
5 here some of the swamp that preexisted,
6 rather thick trees. They cut a bunch of
7 those trees and then they are blowing a hole
8 in it with dynamite.
9 Q. Are you -- do you know the date of
10 this photograph?
11 A. I would -- probably -- I would
12 guess it is about 1959. That 71 is not the
13 date. It is the number of the photo.
14 Q. Right. Okay. By 71, I also wanted
15 to clarify, you're referencing the number on
16 the bottom of the page, MRGO-photos-71?
17 A. Right. But since this is, this is
18 initial, I would say it is 1959 or even '58.
19 Q. So you received this photograph in
20 a set of numerous photographs?
21 A. Right.
22 Q. Okay. And you don't -- okay. So
23 are you sort of speculating based on what it
24 shows? I mean, do you know the location
25 where these people are standing?

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1 A. I don't know the location.
2 Q. Okay. Let's go to the next one is
3 on the bottom, the MRGO photos number is 109.
4 And what does this one show?
5 A. Well, what they're doing here is
6 deepening this natural channel so, I think
7 probably so they can get in bigger dredges
8 and build the big wide channel. It shows a
9 couple things. One, extensive cypress forest
10 in the background. Second, the deposition of
11 spoil over in the foreground (indicating).
12 And so that represents, you know, one of the
13 major ways that wetlands were destroyed,
14 spoil deposition and deepening of the
15 channel.
16 Q. In the foreground and on the
17 right-hand side, is that area a wetland?
18 A. Well, it was, but they are filling
19 it with spoil.
20 Q. So the entire part of the
21 photograph that you can see is containing
22 spoil?
23 A. That is fluid mud they pumped into
24 that area. You can see here in the
25 background, there is some looks like small

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1 levees or small dikes. That may be part of
2 the containment levees that contained this
3 slurry. Because it is very liquid at this
4 point and when it is dredged, the material is
5 pumped into those areas, the solids settle
6 out and the water is allowed to drain and
7 that contains the spoil. In fact, those are
8 called spoil containment areas. Very common
9 technique of dredging.
10 Q. Okay. You said that you had
11 reviewed some of, or you had been given some
12 of the design memoranda for the MRGO.
13 A. Like three thick volumes.
14 Q. Is that how you have come to
15 understand the manner in which it was
16 dredged?
17 A. Well, I've been familiar with
18 dredging for 30 years. This has come up over
19 and over again. So -- and there is a big,
20 for instance, program that's gone on for
21 decades about beneficial use of dredge spoil,
22 so it's not just on this project.
23 Q. Okay. The next photograph is
24 numbered MRGO-photos-127. Can you describe
25 what that is showing?

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1 A. Well, again, this is deepening the
2 natural channel that I would guess in
3 preparation for the larger scale dredging.
4 You see spoil deposit areas. You also see
5 wooded vegetation in here (indicating).
6 Q. Do you know in the upper right-hand
7 corner of this photograph, is that a water
8 area at the top?
9 A. That long linear feature?
10 Q. Yes.
11 A. No. That's a canal of some sort.
12 It's a small one. It might be an old canal
13 for, you know, some small scale navigation.
14 I don't know specifically what it is.
15 Q. Okay. It looks like there are two
16 of those lines, is that right?
17 A. No. I think that the upper one is
18 actually a continuation of this channel. You
19 can see it curves around, but it is just an
20 oblique photograph, so it looks narrow. And
21 then there is this straight channel, which is
22 clearly a small dredge channel for some
23 purpose.
24 Q. So when the MRGO was initially
25 constructed, you think they, there was a

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1 curvy path like this and they --
2 A. They only dredged part of this.
3 This might be Bayou Bienvenue, and MRGO went
4 right through Bayou Bienvenue. Yeah. That's
5 right. It is in Bayou Bienvenue.
6 Q. Are you familiar with this
7 photograph in the caption referencing
8 Stations, are you familiar with what those
9 station numbers mean?
10 A. The station numbers, the lower ones
11 start at the upper end and so they progress
12 as they get larger. You see, this says
13 station zero to station 130, so this
14 indicates here, this is at Bayou Bienvenue.
15 So that's about, Bayou Bienvenue is about,
16 I'd guess, six or eight miles down from the
17 upper end. So this series of photos looks
18 like it went up to 130 and this is about 115.
19 So you are getting down into what's called
20 Reach 2.
21 Q. Okay. For these photos where the
22 caption is, is that the south side of the
23 photo and you are sort of looking at it
24 looking north or do you know which direction
25 it is oriented?

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1 A. I don't know, but it says "on main
2 channel," so it may well be this straight
3 part is the main channel.
4 Q. Okay.
5 A. We picked these photos basically to
6 illustrate dredging activity, how it
7 happened, the deposition of spoil and
8 presence of different vegetation type.
9 Q. Okay. If we can go to the next
10 one. It is MRGO-photos-133.
11 A. This is looking down the MRGO
12 towards the Paris Road bridge, which you see
13 there in the distance. And the water body at
14 the top of the, just at the horizon, is Lake
15 Borgne (indicating). And this illustrates,
16 one, this back levee, the one on the
17 right-hand side of the picture, that's to put
18 up that berm that would contain the spoil.
19 And the wider canal going down towards Paris
20 Road bridge is the initial channel that was
21 dredged. And you can see in the foreground
22 they are beginning to widen the MRGO to the
23 full width in the process illustrated in this
24 photo right here, this one that Mr. Andry
25 showed you (indicating).

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1 Q. Okay.
2 A. And you also see trees in here
3 (indicating).
4 Q. The next photograph is
5 MRGO-photos-141.
6 A. You see several things here. You
7 see the initial narrow channel. You see the
8 back channels. You see the enlargement of
9 the channel. The dredge is now dredging out
10 that final strip of land in the middle of the
11 photo. You see where the land was cleared of
12 trees in the foreground, which will then be
13 dredged. And you see on either side of the
14 channel swamp vegetation.
15 Q. And the next one is
16 MRGO-photos-163. Can you describe this one?
17 A. This is looking generally back
18 towards New Orleans. I think Lake
19 Pontchartrain is in the background. And so
20 you see an extensive cypress swamp on the far
21 side of the MRGO channel. You see the dredge
22 operating to the left. In the center of the
23 photograph is one of those strips that has
24 yet been dredged. It's being dredged now.
25 You see the pipe pumping the slurry into the

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1 dredge disposal area, which is in the
2 foreground.
3 Q. All right. And I think this is the
4 last one. It is MRGO-photos-266.
5 A. This is the Paris Road that you're
6 looking at, that road that goes across there
7 at that time. They had a barge, pontoon
8 bridge, and the channel cutting across this
9 photo is MRGO.
10 Q. You mean sort of to the, from the
11 right-hand side to the left-hand side?
12 A. Right. It is in the process. In
13 the process of this, the Paris Road would be
14 severed and a new bridge is going to be built
15 to the right here, a high level bridge that
16 would go over this to the right of the Paris
17 Road. And you also see the extensive cypress
18 forest here.
19 Q. Now, is this area reflected in this
20 photograph part of the Central Wetlands Unit?
21 A. I think what we're doing is looking
22 towards the river. I can't remember, but so
23 part of it is and part of it is not. Part of
24 it -- because this is the MRGO and that now
25 delineates the Central Wetland Unit. The

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1 Central Wetland Unit was created by the
2 dredging of MRGO, I mean that physiographic
3 area.
4 Q. I see.
5 A. So I think the upper part is in the
6 Central Wetlands Unit.
7 Q. Okay. And this is one, the one we
8 were just discussing, the number 266, does
9 not have a caption. Does that mean from what
10 Mr. Andry was saying that this comes from the
11 library?
12 MR. ANDRY:
13 Yes.
14 THE WITNESS:
15 Yes.
17 Q. Okay. And you just selected those
18 eight photographs as sort of a representative
19 sample, is that what you said?
20 A. Yes, that's right.
21 Q. You also referenced in your report
22 historic photos in Penland report as one of
23 your citations.
24 A. Which page is this?
25 Q. It's on page 4.

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1 A. Yeah. And I think Penland had
2 access to the same photos we did, but he had
3 some photos in his report.
4 Q. Yeah. I'd like to show you this
5 document that I'm handing you is marked Day
6 6. And that is Appendix B from Shea
7 Penland's report. He had titled it
8 "Historical Maps and Aerial Photography."
9 Have you seen those images before?
10 A. Yeah. Uh-huh.
11 Q. And just to clarify for the record,
12 there's a title page, and following that are
13 ten pages showing different images. Are
14 those the images that you were referring to
15 on page 4 where you --
16 A. I think we were referring more
17 specifically to the photos. The first two
18 images or the first two pages are an image of
19 the original French Quarter in New Orleans
20 and then maps, old maps, from the 18th
21 century of the Mississippi River and the
22 wetlands associated with them. The east and
23 west of the river.
24 Q. And what do these, the first --
25 well, I guess it's the second page of Exhibit

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1 6, but the first image on the bottom says
2 "Historical Map Dated 1759." What is the
3 significance of what those maps show?
4 A. Well, I think he was trying to
5 illustrate that, you know, 200 years ago,
6 that now almost 250 years ago, there was
7 extensive, there were extensive wetlands in
8 the Pontchartrain Basin. And also it
9 seemingly indicates fairly extensive
10 freshwater swamps, which is what I think the
11 forest images are. And then the other one is
12 just the mouth of the Mississippi River.
13 Q. It looks to me in this map like
14 Lake Borgne has a very different shape than
15 the maps that we've been looking at in
16 Exhibit 4, for example.
17 A. Yeah. In other words, over 200
18 years there has been wetland loss in this
19 area --
20 Q. Okay.
21 A. -- a gradual wetland loss. The
22 other thing is that you have to think about
23 these old maps is they are somewhat
24 conjectural because the ability to penetrate
25 into these marshes is not -- and we didn't

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1 have any aerial photos, so you have to take
2 them in general, but it is true that many of
3 the lakes that have opened up are fairly
4 closed back then.
5 Q. Okay. I'd like to go through the
6 rest of these as well, but are these the set
7 of historical photographs that --
8 A. That are in Penland's report.
9 Q. -- that you were referencing?
10 A. Yes, uh-huh.
11 Q. Okay. So the second one says on
12 the bottom, has a label "Historical Data
13 Dated 1764."
14 Can you describe what that shows?
15 MR. ANDRY:
17 question to the extent you just
18 asked him what it shows. I won't
19 make a speaking objection. I will
20 just say I object to the form of
21 the question and you can ask
22 whatever you choose.
24 Q. All right. I can rephrase my
25 question. Have you seen this image before?

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1 A. Well, when I reviewed his report.
2 And there are a number of images like this if
3 you collect all the maps. There are books of
4 old maps of Louisiana. It is a thick book.
5 It shows that, you know, the river, New
6 Orleans, and it shows you the sort of general
7 outline of where some of the main water
8 bodies and wetland areas were. You'll notice
9 that Lake Pontchartrain is -- Lake
10 Pontchartrain is actually elongated
11 east-west, and this seems to be elongated
12 north-south, so it gives you some idea of the
13 inaccuracies of this. And also it shows, for
14 instance, in this area that's called Detour
15 des Anglais, I think that's referring to the
16 British troops in the War of 1812, that's
17 where -- or maybe not, because that's
18 earlier, but -- well, maybe that's English
19 Bend. Yeah. That's what it is.
20 MR. ANDRY:
21 It is English Turn.
22 THE WITNESS:
23 English Turn, yeah.
25 Q. Okay. In the river?

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1 A. Yes. But anyway, it is showing,
2 you know, fairly extensive cypress forest out
3 there, which would have been consistent with,
4 you know, a fresher nature of the area.
5 Q. Okay. If you can turn to the next
6 one. It is labeled "USGS Quad Map Dated
7 1892."
8 Is there anything significant about
9 this map?
10 A. Well, one, it shows that wetlands
11 were fairly continuous. It shows that
12 continuous band of forested wetlands, which
13 by now we're picking up the standard
14 designation for that. Where you see St.
15 Bernard written, that indicates forested
16 wetlands, trees.
17 Q. And you mean the way that that area
18 is shaded sort of like dots looking?
19 A. Yeah. Actually it is little tufts.
20 Q. Little images of a plant --
21 A. Yes. That's right.
22 Q. -- or a drawing of a plant?
23 A. And beyond that is wetlands. And
24 you see Lake Borgne there. And you also see
25 the Bayou La Loutre Ridge running out. And

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1 there was a railroad that ran from the river
2 all the way out past where MRGO is now.
3 Q. The railroad ran along the ridge?
4 A. Yeah.
5 Q. Do you know when that railroad was
6 removed?
7 A. I don't.
8 Q. But it is no longer there today?
9 A. It is no longer there.
10 Q. Okay. The next map is labeled
11 "U.S. Coast and Geodetic Survey Map Dated
12 1932."
13 MR. ANDRY:
14 Before you start asking him that,
15 for purposes of the record, can we
16 attach this set of exhibits as the
17 next exhibit since he's been
18 talking about it? We have on the
19 record a set of Penland's exhibits
20 that he's been talking about.
21 MS. MILLER:
22 Right. I marked that as Exhibit 6.
23 MR. ANDRY:
24 Did you? I'm sorry. Did I miss
25 that? Okay. I'm sorry. Go ahead.

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2 Q. Okay. So we're back to discussing
3 the one labeled "U.S. Coast and Geodetic
4 Survey Map Dated 1932."
5 A. I would interpret this one, the
6 darker areas next to the river are the
7 developed areas, the higher areas. And then
8 you have this area, which is consistent with
9 the previous photo of forested wetlands. And
10 then the coastal marshes.
11 Q. Okay. I don't know if we
12 necessarily need to look through each of
13 these individually. Is there -- you cited
14 these in reference to a statement that the
15 semi-enclosed nature of this area, referring
16 to the Central Wetlands Unit and adjacent to
17 the Bayou La Loutre Ridge, and the exclusion
18 of deadly saltwater allowed the survival of
19 these swamps. Can you explain how these
20 images support that statement? That's on
21 page 4.
22 A. Well, I would point to the aerial
23 photograph dated 1965 showing the Mississippi
24 River Gulf Outlet that would have brought
25 saltwater directly into the area. And in the

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1 earlier photographs, the lack of any direct
2 connection. And, in fact, that there was a
3 rail line running out by Bayou La Loutre
4 shows that it was a fairly high barrier to --
5 that would have excluded saltwater.
6 Q. What do you mean when you describe
7 this as a semi-enclosed area?
8 A. It means that the river, the Bayou
9 La Loutre Ridge coming out formed a boundary
10 between the normal input of saltwater from
11 the Gulf of Mexico and then the net
12 accumulation of freshwater from rains and
13 pumping out and runoff from the uplands would
14 have provided a freshwater source from above.
15 It kept this area in balance. And the
16 construction of the MRGO demonstrably
17 increased salinity significantly and to above
18 levels which are lethal to cypress.
19 Q. Okay.
20 A. And the other thing is that there
21 were the two big openings into the Central
22 Wetland Unit at Bayou Dupre and Bayou
23 Bienvenue. You can see that on the aerial
24 photo dated 1990. The Bayou Bienvenue snakes
25 through most of the figure from Lake Borgne,

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1 twisting and turning, crossing MRGO through
2 the structure and then on into this area
3 (indicating).
4 Q. Do these photographs --
5 A. Excuse me?
6 Q. If you compare the one titled
7 "Aerial Photograph Dated 1965" to the one
8 following that in 1985, is it, in sort of the
9 center of the bottom half of the photograph,
10 it looks like, is that the Paris Road, Paris
11 Road and the Paris Road bridge?
12 A. Yeah. That's right.
13 Q. And is there, is that developed
14 area alongside, if you can see right here
15 where I'm pointing in the 1985 photo, it
16 looks like --
17 A. Yeah, that's developed area.
18 Q. Is that Paris Road? So how -- and
19 that was not present in the 1965 photograph,
20 is that right?
21 A. Uh-huh.
22 Q. And does that -- was there
23 additional development of the land in this
24 area besides this portion alongside Paris
25 Road?

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1 A. Wait. Say that again.
2 Q. After 1965, we can't see the entire
3 Central Wetlands Unit in the 1965 picture,
4 but I wondered how much development occurred
5 in the St. Bernard area after 1965.
6 A. Well, the main, if you look at
7 1965, you can see the back, the 40 Arpent
8 Levee is in place. And so essentially all
9 development occurred within that levee.
10 Q. Okay.
11 A. You can see that in the '85. And
12 then a little bit of dredge and fill activity
13 along the Paris Road.
14 Q. Okay. So that development along
15 Paris Road dredged material was, they built
16 up the land there a little bit, is that
17 right?
18 A. Well, in 1985 what probably
19 happened, you can see in that development
20 there's a central water area, that was
21 probably dredged out creating this adjacent
22 higher area using the spoil from that
23 dredging.
24 Q. Could you tell me where that
25 water -- you said a water development area?

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1 A. You see in the center here, right
2 here (indicating), that was dredged out and
3 that's undoubtedly the source of the spoil,
4 which was placed in these areas to bring the
5 level of the land up.
6 Q. Okay. So just east of where the
7 white stuff along Paris Road is located --
8 A. The road itself.
9 Q. -- there is a water area?
10 A. Yeah. And that's typically what
11 would happen. You dredge a deeper area. So
12 you create -- you would create a deeper area
13 for boat access and then the higher grounds
14 would be created from the spoil.
15 Q. Okay. Is there anything else about
16 these images that illustrates your opinions
17 or supports your statement where you cited to
18 them?
19 A. No. I think that's it.
20 Q. This document I'm giving you now
21 I've marked as Day Exhibit 7. Is that
22 something you have looked at before?
23 A. This is from Penland's report.
24 Q. Yes. This is also -- this is
25 Exhibit C to Penland's report.

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1 A. Uh-huh.
2 Q. Is this something you considered in
3 forming your opinions for this case?
4 A. Yes. We looked at this. What this
5 shows is in 1949 there was extensive fresh
6 marsh around, in the area where the MRGO
7 would be dredged. You can see that. It is
8 superimposed on this image, so we can see
9 that.
10 Q. Just to back up a little bit for
11 the record, I just wanted to clarify that
12 Exhibit 7 starts with a cover page titled
13 "Appendix C, Habitat Maps," and is followed
14 by five pages with images, each of them
15 labeled "Habitat Map" with a different date.
16 So what you were just referring to is the
17 first one titled "1949," is that correct?
18 A. That's right. What it shows is
19 green is fresh marsh. He doesn't show here
20 the cypress swamp, but that would be on the
21 river side of that green strip. And then --
22 Q. On part of the area that's still
23 gray in this image?
24 A. Yeah, yeah. It is a little bit
25 darker in the one I have. And it shows the

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1 40 Arpent Canal. So that would have been --
2 this is a more general map than some we've
3 looked at, but that shows that you had
4 cypress swamp and freshwater marsh. By 1968
5 those had entirely disappeared.
6 Q. Do you know where this map comes
7 from, other than it's from Penland's report,
8 but do you know the source of it?
9 A. He used historical maps and photos,
10 but specifically, I don't know.
11 Q. Okay.
12 A. Well, I can speculate, but I don't
13 know which one in particular.
14 Q. Okay. And do you, can you explain
15 the legend?
16 A. Well, the legends refer to
17 different marsh types, and fresh, brackish,
18 intermediate and salt.
19 Q. And do those correspond with what
20 you were describing to me earlier when you
21 give the ranges of salinity tolerance?
22 A. Yeah.
23 Q. In this legend, fresh has the
24 lowest salinity tolerance. And you had said
25 before intermediate is the next lowest, is

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1 that right?
2 A. Uh-huh.
3 Q. And then brackish and then salt?
4 A. Uh-huh.
5 Q. Okay. Make sure you say yes and
6 no.
7 A. Oh, I'm sorry. Yes, yes and yes.
8 Q. Okay. So fresh, intermediate,
9 brackish and then salt?
10 A. Yes.
11 Q. In terms of increasing salinity?
12 A. That's correct. Yes.
13 Q. That's correct is fine also. Okay.
14 So had you reviewed these particular maps
15 prior to seeing them in Shea Penland's
16 report?
17 A. Well, I think he prepared these
18 based on a number of others. As I say, there
19 are several sets of these maps that wetland
20 scientists in Louisiana are very familiar
21 with and they are certainly consistent with
22 those. This specific imagery, I think, he
23 might have produced himself.
24 Q. Okay.
25 A. But I've often reviewed the maps.

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1 Q. If you compare the one labeled
2 "1949" with the one labeled "1968," can you
3 explain -- like there's an increase in
4 intermediate marsh on the 1968 map,
5 particularly along what may be Bayou La
6 Loutre Ridge. Is that right?
7 A. Well, that's the change essentially
8 of that fresh area to a higher salinity
9 marsh-type.
10 Q. It looks like, though, some of
11 where the yellow is, which represents
12 intermediate marsh --
13 A. Intermediate marsh is not
14 recognized as a specific marsh type in 1949,
15 I don't think. It was often grouped with
16 brackish. And it is a later analysis that
17 recognized that that was a unique marsh zone
18 because of the group of species. It had a
19 few species that were more fresh that tended
20 to intermix with it. So the earliest maps
21 didn't identify intermediate.
22 Q. Okay.
23 A. The most dramatic things these
24 things show is the loss of fresh vegetation
25 after the construction of the MRGO.

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1 Q. Okay. You've referenced in your
2 report that you have studied techniques to
3 restore wetlands. Can you explain some of
4 that wetlands restoration?
5 A. Well, the major one is river
6 diversions. And you can see on this habitat
7 map dated 1997, for instance, a great fresh
8 area of this marsh, the yellow tone. That's
9 because beginning in 1992, the Caernarvon
10 diversion started functioning and its
11 salinity in there. Backfilling of canals,
12 creation of marshes with dredge spoil, uses
13 of other freshwater sources to add nutrients
14 and freshwater to deteriorating wetlands.
15 This marsh management, water level
16 management. Those are some of the ones.
17 Q. So some of these restoration
18 techniques have been fairly successful, is
19 that right?
20 A. Yeah. Yeah.
21 Q. You earlier today mentioned the
22 beneficial use of dredged material program.
23 A. Uh-huh.
24 Q. Is that one of the restoration
25 techniques or a program --

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1 A. Yes, uh-huh.
2 Q. -- related to restoration?
3 Have you -- do any of your
4 publications address the restoration of marsh
5 and swamps?
6 A. We published a general review paper
7 in Science this year, early this year, in
8 March where we generally reviewed, you know,
9 how the Delta was formed, how it
10 deteriorated, and the general approach to
11 restoration in the coastal zone.
12 Q. Okay.
13 A. And I've also published papers
14 about specific techniques.
15 Q. Your report also on page 3 refers
16 to a major study that Dr. Shaffer has been
17 involved with regarding the restoration of
18 baldcypress and water tupelo swamps of the
19 Lake Pontchartrain Basin. Are you familiar
20 with that study?
21 A. Yes.
22 Q. Can you explain what that study is
23 about?
24 A. Let's see. Let me make sure.
25 Q. It is on page 3 where you reference

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1 it. It is where you -- it is at the top of
2 the page, the last sentence before the bold.
3 A. Well, I actually have been working
4 with Dr. Shaffer on some of this. That
5 refers to several different projects. One,
6 there is a planned diversion upstream of New
7 Orleans into the Maurepas Basin, which is the
8 swamp basin, to introduce river water there
9 into this Maurepas swamp that is mostly
10 nonsustainable in terms of adding nutrients,
11 sediments, there. He's also been involved in
12 widespread planting of cypress in the area
13 between Lake Maurepas and Lake Borgne,
14 planting young cypress. The issue there is
15 if you do that, you have to have a fairly
16 consistent source of freshwater so that salt
17 doesn't come in and kill your trees.
18 For instance, he planted almost a
19 hundred thousand trees in that general area
20 and they did very well for about 12 years.
21 Then we had a really heavy, really extended
22 drought in 2001 and 2002 and it killed them
23 all. So it shows you the necessity of having
24 a consistent source of freshwater.
25 And then we are also working jointly

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1 in an area where we are using treated sewage
2 effluent, it is treated, and introducing it
3 into a forested wetland north of Lake
4 Pontchartrain and planting trees at the same
5 time to restore forests there.
6 Q. Okay. I think I'm pretty close to
7 the end of what I want to ask about. So if
8 we could take a break and I'll just --
9 MR. ANDRY:
10 That's fine. I'll figure out if I
11 have any questions.
12 VIDEOGRAPHER:
13 Off the record.
14 (OFF THE RECORD)
15 VIDEOGRAPHER:
18 Q. Dr. Day, you identified
19 approximately 30,000 acres of loss that you
20 attribute, of wetlands loss that you
21 attribute to the MRGO.
22 A. Wetlands loss or wetlands change.
23 Q. Okay. So not all -- okay.
24 A. Some cypress swamp is now salt
25 marsh, for instance.

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1 Q. Okay. So 30,000 acres that have
2 been impacted?
3 A. Yeah.
4 Q. Not all of that is lost completely?
5 A. That's right.
6 Q. Okay. Can you quantify how much is
7 actual loss versus how much has just changed?
8 A. You can. I don't know that I can
9 quantify those numbers off the top of my
10 head, but people have done it. It's in this
11 report, the CEI report, for instance. A
12 number of people have done that.
13 Q. Okay. And the report you are
14 referencing is the one that Exhibit 4 came
15 from?
16 A. Yeah. You know, the Mississippi
17 River Gulf Outlet was one of the most
18 dramatic projects in terms of wetland loss in
19 the whole history of Louisiana that occurred
20 at one time like that.
21 Q. Are there any opinions that you
22 have formed with respect to this case that
23 you have not yet expressed today?
24 A. Not, not broad general opinions.
25 I'm sure there are a lot of details that you

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1 haven't asked me about that might come up,
2 but, no, nothing broad.
3 Q. Can you think of any details that
4 you would like to add to clarify anything you
5 said today?
6 A. Well, I mean, for instance,
7 specifically where the line between cypress
8 swamp and fresh marsh was because if you look
9 at various maps, it slightly varies a bit
10 because of interpretation. I can go back and
11 look at those, but I should just answer no, I
12 mean.
13 Q. By you could go back and look at
14 those, do you mean is that something you did
15 not yet do in preparing your report for this
16 case?
17 A. No. That's right. I just looked
18 at the maps that exist, but you find
19 variations in there and I've not, for
20 instance, thought, really spent a lot of time
21 wondering why there were some variability,
22 you know. One number is reported as 5,700
23 acres, the other one is 5,400. That's
24 probably within the margin of error, but
25 there are no general conclusions.

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1 Q. Okay. So does the report that you
2 prepared and that has been introduced as
3 Exhibit 1, does that contain all of your
4 opinions in this case?
5 A. This report contains our major
6 findings, you know, that the Mississippi
7 River Gulf Outlet was constructed, that it
8 resulted in saltwater intrusion, that
9 saltwater intrusion killed freshwater
10 vegetation. It also directly impacted a
11 large area of wetlands. I think those are
12 the main -- and that by eliminating the
13 cypress swamp, you changed the
14 characteristics of that wetland to withstand
15 hurricane effects.
16 Q. Okay. What is the significance of
17 the 30,000 acre loss or change that you
18 attribute to the MRGO?
19 A. Well, for one thing, we lost an
20 enormous potential for hurricane buffer.
21 That's one major change. Loss of habitat.
22 Loss of ability to cleanse water. Wetlands
23 have a number of very important what are
24 called ecosystem services or ecological
25 services, and as you lose the wetlands, you

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1 lose that ability. You lose those services.
2 Q. And with respect to the loss of
3 those 30,000 acres, how is that significant
4 to Hurricane Katrina?
5 A. Well, on one hand, as we stated in
6 our report, you lost forested wetlands, which
7 have a strong buffer against hurricane storm
8 surge and waves. And second, the channel
9 itself allowed an avenue of entry, of waters
10 from hurricane, Hurricane Katrina, that would
11 not, that did not exist prior to the
12 construction.
13 Q. Is that in your report, the
14 reference --
15 A. No, but I interpreted your
16 question --
17 MR. ANDRY:
19 question. He testified about his
20 report and you ask him these broad
21 open-ended questions like what are
22 you doing today and to now attempt
23 to try to say that is not in your
24 report. I don't think he ever
25 rendered that opinion. I think he

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1 was answering your question. So I
2 would object to the form of the
3 question to the extent that you are
4 attempting to say now that he is
5 rendering an opinion that is not in
6 his report. He has testified
7 extensively about what's in his
8 report and answered your questions.
10 Q. Is it your opinion based on the
11 work you've done for this case that the MRGO
12 allowed water to travel in --
13 A. That is my opinion, but it is based
14 on reports of other people. I mean, it is
15 not in my report, but from what the reports
16 that they submitted, I'm convinced that
17 that's the case. My expertise is on what
18 happened to the freshwater wetlands and what
19 the causes were.
20 Q. Okay.
21 A. So two different things.
22 Q. In your opinion, is there something
23 that the Corps of Engineers did wrong?
24 MR. ANDRY:

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1 question. It is beyond his report
2 and beyond the scope of the
3 deposition in 702C. I'm sorry.
4 Did I -- well, I should have let
5 you finish your question.
7 Q. I'll start over with the question.
8 You discussed a number of impacts that the
9 MRGO has had. With respect to the
10 construction of the MRGO, do you have an
11 opinion on whether there was anything the
12 Corps did wrong?
13 MR. ANDRY:
15 question.
16 To the extent you are able to offer
17 some answer.
18 THE WITNESS:
19 They did everything wrong.
21 Q. Okay. I guess I should rephrase my
22 question perhaps. In your opinion, what did
23 the Corps of Engineers do wrong with respect
24 to the Mississippi River Gulf Outlet?
25 MR. ANDRY:

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2 question on numerous grounds, but I
3 object to the form of the question.
4 To the extent you can answer.
5 THE WITNESS:
6 They put it in the wrong place.
7 They didn't follow the advice of
8 the natural resources agencies that
9 provided comments on it. They
10 provided no mechanism for control,
11 saltwater introduction. They
12 didn't, you know -- they could have
13 used -- there was no beneficial use
14 of dredge spoil deposits. They
15 created a deep channel which
16 allowed saltwater intrusion and
17 storm surge. I mean, it is a
18 poster child, you know, my general
19 opinion, not my expert in ecology,
20 it is a poster child of what could
21 go wrong when you build a thing
22 like this.
24 Q. You have referred to in your report
25 and we have discussed today what in your

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1 report you referred to as a 1958 Interior
2 study or Interior report. I just wanted to
3 show you --
4 MR. WILES:
5 You mean the Department of the
6 Interior?
7 MS. MILLER:
8 What's that?
9 MR. WILES:
10 You mean the Department of
11 Interior?
13 Q. In the report, it is just
14 referenced as Interior Report. So I wanted
15 to show you this document and ask you if this
16 is what, I guess before I mark it as an
17 exhibit, if this is what you are referencing
18 when you refer to it, Interior report
19 (indicating). It's on page 5, April 1958
20 Interior report.
21 A. Yeah. This is one of the ones.
22 Q. That's one of the reports?
23 A. Yeah. That's one of them.
24 Q. Did you review other reports from
25 the Department of Interior?

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1 A. The Department of Interior. Well,
2 you know, the U.S. Fish and Wildlife Service
3 commented on the -- I've seen these things in
4 pieces, you know. Yeah, this was part of the
5 Fish and Wildlife, Bureau of Sport Fisheries
6 and Wildlife. And, you know, they said:
7 "Inform the Secretary of the Army that the
8 project is of great concern to fish and
9 wildlife conservationists, including the
10 commercial fishing industry. The Secretary
11 noted the project plans had not been
12 investigated by fish and wildlife
13 conservation agencies, as contemplated in the
14 Wildlife Coordination Act of August 14, 1946
15 and requested the Corps of Engineers to bring
16 all phases of project planning into balance."
17 The Corps didn't do that.
18 Q. Okay. So this, you've read this
19 report prior to today?
20 A. I've looked at it. I haven't read
21 it from cover to cover.
22 Q. Okay. And that is, just to clarify
23 for the record, what the report you were
24 referring to on page 5 of your expert report
25 when you discuss the United States Fish and

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1 Wildlife Service and you cite an April 1958
2 Interior report.
3 A. Yes. I think that --
4 MS. MILLER:
5 Okay. If you think there is a need
6 to make that an exhibit, we can. I
7 just wanted to clarify what the
8 reference was.
9 MR. ANDRY:
10 To the extent you showed it to him,
11 you might as well just make it an
12 exhibit.
14 Q. All right. I'll mark that Day No.
15 8.
16 Have you done any work or
17 collaborated on any projects or research with
18 the Corps of Engineers?
19 A. Yeah.
20 Q. Can you describe that work?
21 A. Well, they go back many years until
22 the seventies. They funded -- I've worked on
23 a number of projects that they have funded,
24 research projects through LSU. I also worked
25 in the Corps of Engineers on a variety of

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1 efforts that they were doing. I worked on
2 the Bonnet Carre rediversion reanalysis
3 study. I worked on the -- I was an IPA at
4 the Corps of Engineers for their, I think it
5 was called the Morganza -- Lower Atchafalaya
6 study. That went on for five years. I was
7 the chair, a member of the what's called the
8 National Technical Review Committee, which
9 was a chair that the, a committee set up by
10 the Corps of Engineers to provide ongoing
11 oversight and input to the development of the
12 LCA, the Louisiana Coastal Area Project,
13 which was the name of the project that the
14 Corp was using for Mississippi Delta
15 restoration prior to Katrina. And I was the
16 chair of that committee for two years. And
17 the work of that committee, one of the
18 outputs was the publication of the article in
19 Science.
20 And I have testified against the
21 Corps in the past. I worked with them in the
22 past. I've had more or less a continuing
23 involvement with the Corps of Engineers since
24 I started work in Louisiana.
25 Q. Okay. You are being paid by the

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1 plaintiffs for your work on this case, is
2 that right?
3 A. That's right.
4 Q. How much are you being paid?
5 A. Three hundred dollars an hour plus
6 expenses.
7 Q. Okay. And do you know how many
8 hours you've worked as of today, or
9 approximately?
10 A. You know, I have it exactly, but
11 I'm thinking something like 30 hours a month,
12 but recently it was more in preparation for
13 this, something along that order.
14 Q. Okay. So 30 hours a month
15 beginning from when you were first contacted
16 at the end of last year?
17 A. Well, I think early on it was a
18 little less.
19 Q. Okay.
20 A. There is an exact record.
21 Q. There was a Notice of Deposition
22 issued for today's deposition. Did you see
23 that? I can show you a copy of it.
24 A. That refers to me?
25 Q. Yes. That officially sets the

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1 deposition for today.
2 A. I was informed by the lawyers that
3 it was today. I don't think I read that.
4 Q. You can take a look at this. Is
5 that something you've seen before
6 (indicating)?
7 A. What's that?
8 Q. Is that something you've seen
9 before?
10 A. I don't think I saw this unless it
11 was sent to me by e-mail.
12 Q. Okay.
13 A. I was informed.
14 Q. On page 3 there is a page titled
15 Exhibit A to Notice of Videotaped Deposition
16 and it lists materials. Did you bring any
17 materials listed on that exhibit today?
18 A. Well, we have all these materials
19 here.
20 Q. You have -- what do you mean by all
21 these materials?
22 A. It says: "Any and all materials
23 considered or relied on by the deponent in
24 connection with this litigation." We have a
25 lot of it here, I guess.

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1 Q. Okay.
2 A. Okay. You have the final part of
3 the report. "Any and all documents regarding
4 any work that the deponent has contracted to
5 perform or has performed for any governmental
6 agency." I didn't do that.
7 MR. ANDRY:
8 We'll provide that. It is my
9 understanding from the progress of
10 litigation that all of this
11 information was produced prior to
12 the deposition. To the extent it
13 hasn't been, we will provide that
14 information, but when we made the
15 expert declarations, it was my
16 understanding that all of that was
17 produced at the time by Andy Owen
18 with Pierce O'Donnell's office.
19 MS. MILLER:
20 Okay. I know we didn't receive all
21 of these things.
22 MR. ANDRY:
23 What things in particular?
24 MS. MILLER:
25 We have not received documents

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1 relating to work with government
2 agencies. And from what Dr. Day
3 has testified to today, I
4 understand that we haven't received
5 all the materials considered or
6 relied upon in connection with the
7 litigation or preparation of the
8 report.
9 THE WITNESS:
10 We were told by -- one of our
11 attorneys told us that if we were
12 confident the Corps had this or
13 knew they had it, we didn't have to
14 produce it.
15 MS. MILLER:
16 Okay. I think that's all of my
17 questions. Thank you, Dr. Day, for
18 your answers.
19 THE WITNESS:
20 Thank you.
21 EXAMINATION BY MR. ANDRY:
22 Q. I just have a few questions so that
23 I can -- we talked about a photograph that I
24 had that I brought that was part of the set
25 from the Orleans Parish library and I wanted

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1 to ask you a few questions. It is Day
2 Exhibit 9.
3 MS. MILLER:
4 Do you have a preference where I
5 put the sticker?
6 MR. ANDRY:
7 No. It doesn't make any
8 difference.
9 MS. MILLER:
10 Do you have a copy --
12 Q. Have you ever seen that photograph
13 before?
14 A. Yeah.
15 Q. Is that photograph similar to and
16 as part of the photographs that are attached
17 to the back of your expert report, which is
18 Exhibit 1?
19 A. Yes.
20 MS. MILLER:
21 Can I look at that copy?
22 MR. ANDRY:
23 Sure.
25 Q. And can you tell me what photograph

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1 Day Exhibit No. 9 depicts?
2 A. It is looking north on the, where
3 the MRGO channel would finally be looking
4 north towards the Intracoastal Waterway. And
5 it shows the access channel that was
6 initially dredged. It shows the dredge in
7 the front conducting the dredging. And the
8 spoil, the slurry pipeline from which the
9 dredge spoil is deposited. It is running
10 across the area to this, it looks like a
11 canal. You can see the pipe running across
12 that area and discharging into the spoil
13 disposal area, which shows the area covered
14 by the slurry mud. It indicates the final
15 width of the MRGO.
16 Q. And that's the final width of MRGO
17 would be depicted by --
18 A. The dashed lines.
19 Q. The dashed lines. But that's the
20 final width as depicted by the photograph in
21 the 1960s when it was first constructed?
22 A. That's right.
23 Q. In looking at the photograph, a
24 different photograph, that was attached to
25 your deposition where they're doing the

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1 explosion, number 71 attached to Exhibit 1,
2 in the, behind the gentlemen pushing down the
3 plunger, is that the type of cypress and
4 tupelo forests that would have been
5 indigenous to the coastal westland area prior
6 to the construction of the MRGO?
7 A. Yeah. You know, there is a lot of
8 variety of cypress forests, but that is
9 fairly typical.
10 Q. And would that have -- would the
11 cypress forests as depicted in this
12 photograph have been found throughout the
13 coastal wetland area that you testified about
14 today prior to the construction of the MRGO?
15 A. Not throughout. It would have --
16 it occurred in a large part of the Central
17 Wetland Unit in the areas closer to the
18 natural levees. As you went out, you went
19 from forested wetland to freshwater marsh,
20 then to higher salinity. The freshwater
21 wetlands looked, I would say they occupied 70
22 to 80 percent of that area.
23 Q. Okay. And are there any cypress
24 forests of the type that are depicted in
25 photograph number 71 attached to Exhibit No.

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1 1 contained in the Central Wetland Unit today
2 after the construction of the MRGO?
3 A. There is a small area, as I said, I
4 estimate somewhere around a hundred acres,
5 where there has been a continuous input of
6 freshwater from a pumping station and an
7 oxidation pond treating sewage.
8 Q. As a result of being in the area
9 and reviewing all the documents and doing the
10 work you did in conjunction with rendering
11 your report, is it your testimony that the
12 majority of the cypress swamp of the type
13 that was, the cypress forest as the type that
14 was depicted in exhibit, excuse me, page 71
15 attached to Day No. 1 is no longer or has
16 died off in the Central Wetland Area?
17 A. Yes. Due to salt intrusion.
18 Q. Now, we talked a little earlier
19 about you mentioned a skeletal --
20 A. Framework.
21 Q. -- framework of ridges in the area
22 through which the MRGO was cut.
23 A. That's right.
24 Q. Do you remember that testimony?
25 A. Uh-huh.

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1 Q. And isn't it true that the Bayou La
2 Loutre was just one of those ridges?
3 A. Well, that was the main one. The
4 main one that had cut through. As it went
5 through, they cut across a number of bayou
6 drainages also, which -- so the canal went
7 through the La Loutre Ridge and then
8 connected directly with Bayou Dupre and then
9 directly with Bayou Bienvenue, so that there
10 is a direct introduction of salt right into
11 the heart of the Central Wetland Unit.
12 Q. And that prior to the construction
13 of the MRGO, the ridges at Bayou Dupre, Bayou
14 Yscloskey, Bayou Bienvenue and Bayou La
15 Loutre protected the cypress swamp and the
16 cypress forests from saltwater intrusion?
17 A. Yes.
18 Q. And you talked a little bit about
19 the placement of spoil banks and the dying
20 off of the marsh. And you were showed the
21 historical photographs from Shea Penland.
22 And in looking at the aerial photograph
23 that's Exhibit 6, in looking at the aerial
24 photograph dated 1958 and comparing that to
25 1965, '85 and '90, those aerial photos, and

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1 2004 and 2005, do those photographs depict
2 the loss of the wetlands in those areas --
3 A. It depicts one --
4 Q. -- consistent with your testimony?
5 A. Yeah. It depicts this ridge. I
6 think this is the Bayou La Loutre Ridge prior
7 to the MRGO.
8 MS. MILLER:
9 Dr. Day, which picture are you
10 looking at?
11 THE WITNESS:
12 This is aerial photograph dated
13 1958. And, unfortunately, the one
14 following it doesn't show --
16 Q. But in looking at it, let me ask
17 you this question. This structure here, it
18 appears to be bayou, the Michoud Canal
19 (indicating).
20 A. Yeah.
21 Q. And that's the same as this
22 structure here?
23 A. Okay. Uh-huh.
24 Q. So from a point of reference, and
25 specifically my question is in the one dated

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1 1965, this appears to be the Mississippi
2 River Gulf Outlet?
3 A. That's right. That's right.
4 Q. Okay. So in looking at that, it is
5 my understanding that the placement of the
6 spoil and the killing of the marsh would have
7 resulted in this area, is that correct?
8 A. That's right.
9 Q. So in looking at the photographs
10 post-1965, that is, 1985, 1990, 2004 and
11 2005, do those photographs show a loss of
12 marsh and wetlands in that area which you've
13 depicted as the Central Wetland Area?
14 A. Yes.
15 Q. And does that same dynamic ---
16 A. It also shows the loss of wetland
17 due to the widening of the channel. If you
18 look at 1965, it is rather a straight line on
19 the east side of the MRGO, and progressively
20 you see the erosion back from that as the
21 erosion goes into those wetlands.
22 Q. And isn't there -- in your report
23 you mentioned and Miss Miller asked you about
24 I think it was wind throw, is that correct?
25 But nonetheless, on page 3 of your report you

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1 talk about wind throw from -- and that you
2 mentioned that live oak, cypress and tupelo
3 stands are better for storm surge
4 resistance -- actually, let me ask you the
5 question this way. Your report specifically
6 states that "live oak and palms are more
7 resistant to wind throw than baldcypress
8 and water tupelo," is that correct?
9 A. Uh-huh.
10 Q. And that baldcypress and water
11 tupelo, on a continuum, you would have live
12 oak, cypress and then marsh, is that correct,
13 as far as resistance to wind throw?
14 A. Yeah, except you wouldn't talk
15 about wind throw in terms of the marsh. You
16 know, it can't be knocked down like a tree.
17 It can be disturbed, but I don't think it is
18 perfect to say wind throw when you are
19 talking about the marsh.
20 Q. But in looking at -- let me ask you
21 this. Would the live oak, palms, baldcypress
22 and water tupelo also be more resistant to
23 storm surge in conjunction -- as the same as
24 it would be more resistant to wind throw?
25 MS. MILLER:

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1 I object to the form.
2 THE WITNESS:
3 Can I answer?
5 Q. Did I ask that properly?
6 MS. MILLER:
7 You can answer it.
8 THE WITNESS:
9 I can go on. Okay. Well, the
10 thing is about the palms and the
11 live oaks, they are on the uplands.
12 They are not wetland trees. That's
13 the thing about that, the cypress
14 and tupelo are wetland trees and
15 grow far out in the wetlands. So
16 in that sense, the distribution of
17 live oak was much narrower than the
18 distribution of cypress forests.
20 Q. I understand, but didn't you
21 testify that there were or that you would
22 expect to find oaks along --
23 A. That's right. Yeah.
24 Q. -- the ridge of the MRGO?
25 In marsh ecology, would you also not

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1 expect to find stands of oak trees similar to
2 those in the photographs that were attached
3 along the Bayou Dupre, Bayou Bienvenue, Bayou
4 Yscloskey Ridges in addition to the Bayou La
5 Loutre Ridge?
6 A. Yes. You would expect -- and those
7 are the highest elevations of those ridges.
8 And on the flanks of those ridges is where
9 the cypress forests would be.
10 Q. And I think in one of the exhibits
11 you actually mentioned there was enough of a
12 ridge along Bayou La Loutre that in 1892 it
13 supported a railroad, is that correct?
14 A. That's right.
15 Q. As depicted by the 1892 map from
16 Mr. Penland, attached to Mr. Penland's
17 report. And let me ask you just one other
18 question or two. The placement of the MRGO
19 and the saltwater intrusion and the
20 enlargement of MRGO, that is all continuing
21 to today, correct?
22 A. Uh-huh.
23 Q. So you're still experiencing
24 saltwater intrusion as a result of MRGO and
25 through the MRGO, is that correct?

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1 A. Yeah.
2 Q. And you're still experiencing
3 wetlands loss today in that area as a result
4 of the MRGO, is that correct?
5 A. Yeah.
6 Q. And then in looking at -- are there
7 any photographs that were attached to your
8 deposition that would depict the type of oak
9 trees or cypress trees that you would have
10 seen in that area prior to the building of
11 the MRGO? Here are the photographs
12 themselves (indicating).
13 A. Okay. Yeah. In 57, you see a
14 cypress swamp there on both sides of the
15 canal. In 71, the cypress swamp. 109, photo
16 109, there are cypress swamps and there is
17 also showing where that the spoil deposit was
18 put in. In the 127, MRGO photo 127 from the
19 Army Corps of Engineers, there's wooded
20 vegetation. It is hard to say from this
21 photo if it's cypress. And you see dead
22 cypress or dead trees where the spoil has
23 gone. You see an extensive forest in 133.
24 Q. Let me ask you about that
25 photograph. You were asked about that by

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1 Miss Miller. I noticed while she was
2 examining you that at the bottom of the
3 thing, it's a U.S. Army Engineer District
4 Mississippi River Gulf Outlet, and then July
5 9, 1958, and then at the bottom it says:
6 "View east vicinity Station 110, GIWW at
7 right."
8 Does that reference tell you where
9 the photograph or what the photograph
10 depicts?
11 A. The GIWW at right --
12 MS. MILLER:
13 Which?
15 Q. I'm just telling you "View east
16 vicinity Station GIWW at right," that
17 statement on the bottom.
18 MS. MILLER:
19 Which page?
20 MR. ANDRY:
21 It is 133. I'm sorry.
23 Q. Is that statement indicative of
24 what's depicted in the photo?
25 A. Yeah, because this is running down

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1 the GIWW towards the Paris Road bridge, out
2 towards Lake Borgne, and this is the area
3 where the MRGO, I mean, the GIWW went from
4 being 350 wide and 12 feet deep to 500 feet
5 wide and 30 something feet deep. So this is
6 the sort of massive enlargement of that
7 portion, which is called Reach 1. So
8 twelve-fold increase in the cross-sectional
9 area of the GIWW to connect into the MRGO.
10 Because in this Reach --
11 Q. Right. And would you have a
12 corresponding increase in the saltwater
13 intrusion since it is, there is such an
14 increase in size of the GIWW at Reach 1?
15 A. Yes. It has been measured all the
16 way into Lake Pontchartrain from here.
17 MR. ANDRY:
18 Okay. I don't have any other
19 questions.
21 Q. I'd like to ask just a few
22 follow-up questions.
23 VIDEOGRAPHER:
24 Excuse me. I have to change tapes.
25 That's the end of tape 3 and we're

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1 now going off the record.
2 (OFF THE RECORD)
3 VIDEOGRAPHER:
5 We're back on the record.
7 Q. Dr. Day, you were just discussing
8 what was marked as Exhibit 9, this photograph
9 (indicating). Do you know who put those
10 labels on it?
11 A. I don't.
12 Q. And can you show or describe in
13 this photograph where any cypress trees are
14 located?
15 A. Well, I know this area, so there
16 are cypress trees are back -- this is looking
17 west as the access channel comes and joins
18 towards New Orleans here. So it is going to
19 be dredged much bigger. I think this is
20 Bayou Bienvenue coming across the upper part
21 of the photo, so there are cypress trees in
22 there (indicating).
23 Q. You are pointing to the right-hand
24 side.
25 A. Yeah. Yeah. And there is also --

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1 we --
2 Q. I'm sorry. To clarify for the
3 record, you were pointing to the water that
4 is on sort of maybe a portion of the way down
5 on the right-hand side as being Bayou
6 Bienvenue, is that right?
7 A. That's what I think. This is Bayou
8 Bienvenue coming in here and crossing over
9 and going back in this area (indicating).
10 This is cypress swamp in there.
11 Q. And so where you are pointing to
12 when you say, that is the top of the photo,
13 maybe an inch down in the middle?
14 A. That's right. Below some tall
15 structure. Maybe it is a building.
16 Q. Okay.
17 A. And I'm not sure, but there may be
18 a few scattered cypress trees out in here.
19 This vegetation right in here is what's
20 called Roseau Cane or Phragmites
21 (indicating).
22 Q. You are pointing to where the area
23 with the words "To Gulf" is?
24 A. Yes, just below the dredge.
25 Phragmites is a freshwater vegetation.

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1 Q. Okay. If you'll look again at the
2 exhibit, I mean, Appendix B from Dr.
3 Penland's report, Historical Maps and Aerial
4 Photography. That was --
5 MR. ANDRY:
6 Number 6. It is Exhibit No. 6,
7 right?
9 Q. Exhibit 6, I believe. I've gotten
10 a little bit confused.
11 A. Yeah.
12 Q. Yeah. Exhibit 6. Mr. Andry asked
13 you to look at the photographs from '58, '65
14 and later and compare certain things about
15 them. Are these -- it appears to me that
16 these photographs are taken -- are they in
17 different scales?
18 A. Well, yeah, they show different
19 areas. The Gulf Intracoastal Waterway in '58
20 is crossing the top there.
21 Q. And some are closer images to the
22 ground and some were taken from farther away,
23 is that right?
24 A. That's right.
25 Q. Okay. Does that impact your

11/19/2007
Page 233
1 ability to compare from one to another?
2 A. Not to the extent that the
3 questions were asked.
4 Q. Okay. And you were describing how
5 these show a loss of wetlands. Can you
6 explain what it is you're looking at that
7 depicts a loss of wetlands?
8 A. Well, you can see this area opening
9 up in the '65 photo, this, in the triangle
10 area we were talking about before
11 (indicating). That's the New Orleans sewage
12 plant.
13 Q. Okay.
14 A. There's been a loss of cypress
15 dying out in there. You can see ponds
16 opening up in this region right here
17 (indicating). You can also begin -- in the
18 next photo, you can see the complete loss of
19 the cypress wetlands between Paris Road and
20 the sewage plant of New Orleans and also you
21 can see the beginning of the, I mean, not the
22 beginning, but the erosion of the marsh edge
23 along the MRGO and Reach 2.
24 Q. I'm sorry to stop you just for a
25 second. In that photo, it's the 1985 frame?

11/19/2007
Page 234
1 A. Yes, in the 1985.
2 Q. And are you saying that the area in
3 the left, bottom left-hand corner between
4 Paris Road and the sewage plant, was that
5 loss, are you attributing that loss to the
6 MRGO?
7 A. Well, that's the continuing loss.
8 I would -- yeah, I would say so. And also it
9 looks to me like part of this was impounded,
10 those square areas, and they open up by 1985,
11 which looks to me like a breach in levees.
12 Q. And impoundment would have been an
13 intentional enclosure of that area, is that
14 right?
15 A. Yeah. We are trying to ascertain
16 what that is, in fact. We haven't yet.
17 Q. Okay. So you are not certain what
18 happened with that rectangular area in the
19 bottom left-hand corner of the photos from
20 19 -- well, 1985 and then it is a little more
21 in the middle of the photo from 1965 --
22 A. Yeah.
23 Q. -- is that right?
24 Okay. And that's the area in
25 between the Paris Road bridge and the sewage

11/19/2007
Page 235
1 plant?
2 A. That's right.
3 Q. I'm trying to make sure when we
4 read it we can understand what we are talking
5 about. I would also like you to say, if you
6 can, with either the photograph labeled 1958
7 or 1965, are you able to see where any
8 cypress or other trees are depicted in those
9 photographs?
10 A. Well, they would have been along
11 the salt ridge here, which is the Gentilly
12 Ridge (indicating).
13 Q. And that's north of the GIWW, is
14 that what you are pointing to?
15 A. North of the GIWW. And then
16 cypress swamps existed here in the 1965 photo
17 around the sewage treatment plant. You can
18 see it beginning to disappear.
19 Q. Okay.
20 A. And along the -- it used to exist
21 along the edges of the 40 Arpent Canal.
22 Q. Are you saying that in the 1965
23 photograph, the trees still exist there?
24 A. No. They didn't exist at that
25 point. I think this -- I'm not exactly sure,

11/19/2007
Page 236
1 but I think this white signature is what you
2 are seeing as water there where the forest
3 used to be. And you are seeing a reflection
4 off the water just as you see it in that kind
5 of long linear lake right above there.
6 Q. Okay.
7 A. Are we looking at the same one,
8 1965?
9 Q. 1965. Yeah. Okay.
10 A. When the sun is directly overhead,
11 you get this glint off the water. So I would
12 think that that, my guess would be that that
13 is an area that cypress has died and you are
14 seeing the water.
15 Q. Okay. But to some extent, you are
16 guessing about what these depict?
17 A. Yeah.
18 Q. And is the loss that you've just
19 described along the 40 Arpent Canal, do you
20 also attribute that to the MRGO as the cause?
21 A. Well, to the extent that there were
22 cypress forests there, it was fairly narrow
23 here along the -- beginning at Paris Road,
24 the mapping showed a rather narrow zone of
25 cypress forests and then in increasing,

11/19/2007
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1 following generally where we see that white
2 area, the 40 Arpent Canal goes straight and
3 then there's a turn towards the bottom of the
4 picture. The mapping that I've seen
5 basically shows a great extension of the
6 cypress forest then in that area. And that's
7 what I'm guessing. I'm -- it looks to me
8 this is what it is.
9 Q. Okay. So you're relying on things
10 you've seen in other maps to infer what this
11 photograph shows, but it's not very clear on
12 this photograph to make any judgment with
13 certainty?
14 MR. ANDRY:
16 question.
18 Q. Is that a fair statement?
19 A. You make your judgment based on
20 photos, what you know that's on the ground,
21 maps, that kind of thing, so all of that
22 comes together.
23 Q. Okay. Right. And that's what you
24 are relying on --
25 A. Yes.

11/19/2007
Page 238
1 Q. -- in trying to interpret this
2 photograph?
3 A. Uh-huh.
4 MS. MILLER:
5 Okay. I don't have any other
6 questions.
7 VIDEOGRAPHER:
8 This concludes the deposition.
9 We're now going off the record.
10
11 (Whereupon, the deposition was
12 concluded at 3:53 p.m.)
13
14
15
16
17
18
19
20
21
22
23
24
25

11/19/2007
Page 239
1 WITNESS CERTIFICATE
2
3
4 I, PROFESSOR JOHN W. DAY, JR., do
5 hereby certify that the foregoing testimony
6 was given by me, and that the transcription
7 of said testimony, with corrections and/or
8 changes, if any, is true and correct as given
9 by me on the aforementioned date.
10
11
12
DATE SIGNED WITNESS' SIGNATURE
13
14
15
16 Signed with corrections as noted.
17
Signed with no corrections noted.
18
19
20 DATE TAKEN: November 19, 2007
21
22
23
24
25

11/19/2007
Page 240
1 REPORTER'S CERTIFICATE
2
3 I, MARGARET MCKENZIE, Certified Court
4 Reporter, do hereby certify that the
5 above-named witness, after having been first
6 duly sworn by me to testify to the truth, did
7 testify as hereinabove set forth;
8 That the testimony was reported by me
9 in shorthand and transcribed under my
10 personal direction and supervision, and is a
11 true and correct transcript, to the best of
12 my ability and understanding;
13 That I am not of counsel, not related
14 to counsel or the parties hereto, and not in
15 any way interested in the outcome of this
16 matter.
17
18
MARGARET MCKENZIE, CCR, RPR, RMR, CRR
19 CERTIFIED COURT REPORTER
20
21
22
23
24
25

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DAY, JR., DR. JOHN W.

IN RE: KATRINA CANAL CIVIL ACTION

PERTAINS TO: Robinson

Deposition of DR. JOHN W. DAY, JR.,

ANDRY LAW FIRM

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