Ktr00066

DAY, JR., DR. JOHN W.

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Page 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

IN RE: KATRINA CANAL BREACHES CONSOLIDATED LITIGATION

CIVIL ACTION 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

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APPEARANCES (continued):

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U.S. DEPARTMENT OF JUSTICE (By: Kara K. Miller, Esquire) (By: Traci Colquette, Esquire) P.O. Box 888 Benjamin Franklin Station Washington, D.C. 20044 (202) 616-4289 Attorneys for Defendant, United States of America

APPEARANCES (continued):

ALSO PRESENT:

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8 Sarah Mack

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ALSO PRESENT: LABORDE & NEUNER (By: Ben L. Mayeaux, Esquire) One Petroleum Center, Suite 200 1001 West Pinhook Road Lafayette, Louisiana 70503 (337) 237-7000

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CHAFFE McCALL, L.L.P. (By: Parker Harrison, Esquire) Suite 2300 1100 Poydras St. New Orleans, Louisiana 70163-2300 (504) 585-7000

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Ken Hart, CLVS Hart Video of Louisiana, L.L.C. (866) 649-4278

REPORTED BY: MARGARET MCKENZIE, CCR, RPR, CMR, CRR Certified Court Reporter

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APPEARANCES (continued):

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DUPLASS, ZWAIN, BOURGEOIS, MORTON, PFISTER & WEINSTOCK (By: Joseph E. Bearden, III, Esquire) 3838 N. Causeway Blvd., Suite 2900 Metairie, Louisiana 70002 (504) 832-3700

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BURGLASS & TANKERSLEY, L.L.C. (By: Kea Sherman, Esquire) 5213 Airline Drive Metairie, Louisiana 70001 (504) 836-2220

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LAW OFFICES OF F. GERALD MAPLES, P.A. (By: Stephen M. Wiles, Esquire) 902 Julia Street New Orleans, Louisiana 70113 (504) 569-8732

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INDEX EXAMINATION BY: MS. MILLER.............................8 MR. ANDRY............................216 MS. MILLER...........................236 EXHIBITS: Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit

1..............................18 2..............................25 3..............................39 4. ...........................81 5..............................87 6.............................183 7.............................193 8.............................211 9.............................217

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STIPULATION It is stipulated and agreed by and between counsel for the parties hereto that the deposition of the aforementioned witness is hereby being taken under the Federal Rules of Civil Procedure, for all purposes, in accordance with law; That the formalities of reading and signing are specifically not waived; That the formalities of sealing, certification and filing are specifically waived; That all objections, save those as to the form of the question and the responsiveness of the answer, are hereby reserved until such time as this deposition, or any part thereof, may be used or sought to be used in evidence. * * * * * MARGARET MCKENZIE, Certified Court Reporter, in and for the Parish of Orleans, State of Louisiana, officiated in administering the oath to the witness.

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VIDEOGRAPHER: This is the videotape deposition of Dr. John W. Day, Jr. This deposition is being taken in the matter of Robinson versus United States, Case Number 06-2286. We're at the Law Offices of Lambert and Nelson located at 701 Magazine Street in New Orleans, Louisiana. Today's date is November 19, 2007. My name is Ken Hart. I'm a certified legal video specialist with Hart Video of Louisiana. The court reporter is Margaret McKenzie with Johns Pendleton and Associates. Would counsel, please, introduce themselves. MS. MILLER: My name is Kara Miller. I represent the United States. MR. ANDRY: Jonathan Andry on behalf of the plaintiffs. MS. COLQUETTE: Page 7

Traci Colquette also here for the United States. VIDEOGRAPHER: Would the court reporter please swear in the witness. DR. JOHN W. DAY, JR., Department of Oceanography and Coastal Sciences, Louisiana State University, Baton Rouge, Louisiana 70803, after having been first duly sworn by the above-mentioned court reporter, did testify as follows: VIDEOGRAPHER: Please begin. EXAMINATION BY MS. MILLER: Q. Good morning, Dr. Day. A. Good morning. Q. We met a few minutes ago. My name is Kara Miller and I'm an attorney with the Department of Justice. I represent the United States in this action, Robinson versus United States. Have you had your deposition taken before? A. Yes. Q. Yes. So you understand then that

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I'll be asking you questions and you are under oath to fully and completely answer those questions? A. Uh-huh. Q. And if you do not understand a question or cannot hear my complete question for any reason, please let me know; otherwise, I'll assume that you've understood the question. Is that okay? A. Okay. Q. Additionally, please make sure you provide a verbal response to each of the questions so that the court reporter can take it all down. And also I will also try and be careful not to talk at the same time that you are speaking and, likewise, if you could make sure if I finish the question before you begin your response. Is there any reason that you cannot testify today? A. No. Q. Have you taken any medications that would impact your ability to testify? A. No. Q. Okay. If, for any reason, as the deposition continues you realize that there's

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a problem with your ability to testify accurately, just let me know. And also, if you need to take a break, we can do that. A. Okay. Q. Just let us know. I understand from speaking with plaintiffs' counsel, Mr. Andry, before this deposition began, that Dr. Shaffer is also present. And we noticed your deposition today rather than Dr. Shaffer's because the plaintiffs have represented that you would be their designated expert on this report that was produced. If there are questions today that you feel need to be answered by Dr. Shaffer rather than yourself, just let me know as we go along. Fine? A. Okay. Q. Okay. I guess to begin, if you would state your full name for the record. A. John Wilton Day, Jr. Q. And are you currently employed? A. I'm currently a Professor Emeritus in the Department of Oceanography and Coastal Sciences at Louisiana State University. Q. Okay. What does the title professor emeritus mean?

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A. It means that I've retired and that the department has given me the title of Professor Emeritus. I am also receiving part-time pay from the department. Q. Okay. Do you continue to teach there? A. I'm not teaching. I'm doing research. Q. Okay. And what is your business address? A. The address of the university is the Department of Oceanography and Coastal Sciences, Louisiana State University, Baton Rouge, Louisiana, 70803. Q. As I said, we're here today for your deposition because the plaintiffs identified you as an expert witness. Have you been retained by the plaintiffs? A. Yes. Q. And when did you first become involved in this case? A. It was, I think, late last year. I'm not sure exactly, or early this year. Q. So late 2006 or early -A. Or early 2007. I don't remember.

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Q. Okay. Do you remember who contacted you? A. I was contacted by some of the other experts who told me about the case and said that the plaintiffs' lawyers were interested in talking with you and that's how it started. Q. Do you -- can you tell me which experts? A. I think it was Dr. Paul Kemp. Q. And at the time Dr. Kemp contacted you, do you know whether he had already been retained by the plaintiffs as an expert? A. I think so. Q. Okay. And what did Dr. Kemp tell you about the case at that time? A. He -- he gave me a general overview of what the case was about and indicated where, you know, I might fit in in terms of my own expertise. Q. And after that, did you contact the plaintiffs' attorneys? A. I can't remember whether I contacted them or they contacted me. Q. Okay. And once you spoke -- I

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assume at some point you then spoke with plaintiffs' attorneys? A. That's right. Q. Do you remember who you spoke with? A. It might have been Mr. Bruno. Again, I can't remember. There are a bunch of them. Q. Okay. And at that time, were you -- is that when you were retained? A. Yeah. Q. And what have you been asked to do in this case? A. I've been asked to specifically to consider the ecology of the cypress forest in the area affected in that southeast area below New Orleans here and what factors would have affected their survival and mortality in general. Q. Okay. A. And wetlands, more generally the wetlands in that area. Q. Okay. And what do you understand the issues in this case to be? A. Well, the issue that I'm dealing with is the mortality of cypress swamps in

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that area. And when I mean that area, I mean southeast of New Orleans on the east side of the river and what led to their mortality. Q. Okay. Had you studied this issue prior to being retained for this case? A. Yes. Q. I'll ask you a little bit more about your background in a few minutes. Yeah. I'll follow up on that in a few minutes. Have you read the Complaint that's been filed in this action? A. I've read parts of it. Q. What do you mean by parts of it? A. Well, I've not read the whole thing. It was provided to me and I looked at it looking for the sections that might pertain to what I would testify to. Q. Okay. Do you recall what in the Complaint pertained to what you might testify to? A. Well, it had to do with the impact of MRGO on the wetlands of that area and a lot of it came out of discussions with attorneys and other experts, too. Q. A lot of your understanding --

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A. Yeah. Q. -- of what -A. Uh-huh. Q. -- your understanding of the Complaint? A. Uh-huh. Q. Okay. Have you read any other documents that have been filed with the court? A. Yeah, I have. Q. Which documents? A. Well, there's a whole, there's a whole list of them. I, you know, I could give you the names of some of them. I probably don't remember all of them, but there's been -- it is my understanding there has been an enormous amount of information filed, and I've read mainly the parts that pertains to vegetation issues and salinity issues and that kind of thing. Q. You mentioned there is a list. Is that a list that someone provided to you? A. We've been provided hard copies of documents, CDs, documents and also -- yeah, we have been provided with a long list. I

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haven't read the whole list. Q. If you can recall some of those documents that you looked at, could you list a few of them? A. Well, there are the MRGO general design memoranda about -- there are several of those. There are a number of documents about pre- and post-vegetation and salinity of the area. And there -- you probably -- I don't know, at least a dozen of those. There are letters from agencies commenting on the proposal to dig MRGO. There is the Team Louisiana report. There is a report from -in the late 1999, an EPA St. Bernard paper on the causes of, the effect of MRGO in that area. I've read a bunch of general literature on cypress swamps and cypress swamp ecology and wetland ecology in general. There is a report by Coastal Environments, a series of reports by Coastal Environments on the St. Bernard area. Q. What is Coastal Environments? A. Coastal Environments, Incorporated is a consulting firm in Baton Rouge and they have conducted a fair amount of work for St.

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Bernard Parish on this issue. Q. Do you -- can you specify the time period that that work has been conducted? A. Well, it started back in the sixties and seventies and I think has continued even to the present. Coastal Environments was involved, for instance, in the 1999 report. Q. Okay. So the things that you've just listed, you -- did you say that those were provided to you by plaintiffs' counsel? A. A lot of them were. I mean, there are also papers I've read just to refresh my memory on ecology of wetlands, and specifically cypress swamps in that area. Q. And by that, you mean things you located for your own research or prior knowledge? A. Yeah. Q. Yes. Have you come to any conclusions or developed any opinions about the subject matter of this case? A. I have. Q. And I want to discuss those in detail in a few minutes. For now, would you

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briefly state the conclusions you've reached? A. That construction of MRGO led to increases in salinity in the area and widespread mortality of cypress swamps and freshwater marshes. Q. Are there other opinions? A. Well, those are the -- that's the main opinion. There are a lot of minor opinions I think you said you would get into. Q. Okay. And you've prepared a report that contains these opinions, is that correct? A. That's right. It is right here (indicating). Q. Okay. I'm going to introduce a copy of it into the record. A. All right. MS. COLQUETTE: Do you need a copy? MR. ANDRY: I have one. EXAMINATION BY MS. MILLER: Q. I'm showing you this document, which I've marked as Exhibit 1. Is that the report that you've prepared?

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A. Yes. If -- I see the title sheet. MR. ANDRY: Miss Miller, could we do the -- for the purposes of this deposition, we've been identifying like Day -MS. MILLER: Like Day. MR. ANDRY: -- like Day 1. That way we don't have multiple ones. And that way, we can identify it by deposition. EXAMINATION BY MS. MILLER: Q. Sure. Okay. I will go ahead and let you hold on to that copy during the deposition just to make sure that we're -A. Okay. Q. -- discussing the same report. A. Okay. Q. If you could just flip through that and confirm that that looks like the report that you've produced in this case. A. Yeah. It appears to be it. Q. Okay. And does this report contain all of the conclusions and opinions that you've reached in this case?

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A. Yeah. Q. How long did it take you to formulate your opinions? A. For this report specifically? Q. Yes. A. We worked on this for two to three months, I would say. Q. And when you say we, who is that? A. Dr. Shaffer and I (indicating). Q. Okay. On page 2, your report states that it is submitted with respect to the 702C immunity issues. What do you understand the 702C immunity issues to be? MR. ANDRY: I object to the form of the question to the extent that might, the way that you phrased the question might call for him to render a legal opinion. But to the extent you can answer that and you understand it, go ahead. THE WITNESS: Whether or not the MRGO is a flood control project rather than a

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navigation project. EXAMINATION BY MS. MILLER: Q. I just want to make sure with the objection that I understand your answer correctly. You're saying that your understanding of the 702C immunity issue is that, is the question of whether or not the MRGO is a flood control project? MR. ANDRY: I object to the form of the question. You can answer subject to the objection. THE WITNESS: I really don't feel comfortable answering questions about legal issues. You know, I think I've stated my understanding in a general way, and so I would prefer, unless you really want me to -EXAMINATION BY MS. MILLER: Q. Okay. I understand. Could you just explain when you wrote in your report that it was submitted with respect to a 702C immunity issues, what did you mean by that?

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A. That that was the issue of Robinson and that's what I was retained to be an expert in. Q. Okay. Behind tab 1 of the document I gave you as Exhibit 1, there are several photographs. There should be eight of them, I believe. Were these part of the report you prepared? A. Yeah. Uh-huh. Q. Okay. And your CV is also included, is that correct? A. I think so, yes. Yeah. Uh-huh. It's a, it is a rather abbreviated CV, so, anyway. Q. Have you provided a more complete CV? A. I did. Q. To the plaintiffs' attorneys? A. Uh-huh. Q. Okay. I just want to remind you to try to make sure you use yes and no rather than uh-huh. A. Okay. Q. So you did provide a complete CV to the plaintiffs' counsel?

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A. Yes. Q. But that's not what starts on page 16 of your report? A. No. This is a somewhat abbreviated, well, much abbreviated. It basically gives my basic educational background and some key publications, recent key publications. Q. I note that it says "Selected Recent Publications, 2001 to 2003." Do you have publications more recent than 2003? A. I do. Q. And those are not included on this copy of your CV, is that correct? A. No, they are not, not in this particular one, but -Q. Okay. Were those publications listed on the CV that you provided to plaintiffs' counsel? A. Yes. Uh-huh. Q. Okay. MR. ANDRY: It is my understanding for purposes of the record that his full CV and

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other information required by the Federal Rules of Civil Procedure were provided to the United States when we made the expert designation separate and apart from this. MS. MILLER: Okay. MR. ANDRY: And to the extent it's not, we'll provide you with whatever that is on his CV. MS. MILLER: Okay. EXAMINATION BY MS. MILLER: Q. Where this copy that starts on page 16 lists the selected publications, can you explain how you chose what to include or exclude here? A. I think what I did, when I sent them my CV, the full CV and this CV, that I selected some recent publications to indicate my expertise generally in this area. I've done quite a bit of international work and I think I excluded most of that from here. Q. Okay. So from looking at the

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

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and Environmental Sciences from the University of North Carolina. I received that in 1971. And since that time, I've carried out studies of wetland and coastal ecology, both in the Mississippi Delta and numerous other areas worldwide. Q. Could you explain a little bit of your employment history. A. Well, in 1971 I accepted a position at LSU and I worked at LSU until 2005. I retired in the summer of 2005. Since that time -- and I rose to the rank of full professor. I think I got full professor in 1980. And then since my retirement, I've been a Professor Emeritus up until the present. Q. Okay. And how would you describe your area of expertise? A. Coastal ecology, wetland ecology and, more generally, marine and coastal ecology. Q. Have you published in each of these fields that you've just mentioned? A. Yes. Q. Are there other areas or topics on

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which you have published? A. Well, ecology is a very general broad encompassing term, so it refers to the natural functioning of ecosystems, so I've published across a whole spectrum of topics within ecology. Q. Within the broad subject of ecology, is there something more specific that you have focused on? A. Well, I've carried out studies of hydrology, biochemistry, which is the chemistry of coastal systems and other wetland systems. I've studied the structure and productivity and vegetation ecology of plants, wetland plants specifically. I've carried out studies on algae growing in coastal waters. I've studied mangroves. I've studied extensively human impacts and coastland and wetland ecosystems. I've carried out studies on use of models to gain an understanding of the function of these ecosystems and, to some extent, human societal ecosystem and interactions. Q. Could you -- what sort of models did you mean when you just mentioned models?

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A. Models are computer -- mathematical models, computer simulation models. Q. And what have you, what have you used models to simulate? A. Well, you use models to understand the functioning of natural ecosystems. You use models to understand the impacts of human activities. You use models to design optimum management for natural ecosystems. We've used them for all of those things. Q. And again, when you say we, do you, who do you mean? A. The colleagues I've worked with. I probably have 300 coauthors in all my publications. Q. Okay. The report indicates that it was jointly prepared by you and Dr. Shaffer, is that correct? A. That's correct. Q. And also included in the report beginning on page 18 is Dr. Shaffer's CV, is that correct? A. Uh-huh. Yes. Q. Can you tell me how you know Dr. Shaffer?

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A. I've known Dr. Shaffer since he was a student in the Department of Oceanography where he received his Ph.D. in 1986. I've known him since then and we have collaborated on a number of studies on ecology of cypress swamps. Q. Okay. Was he a student of yours? A. No. I was not his professor. Q. Okay. Could you explain how your expertise differs from that of Dr. Shaffer's? A. Well, there is quite a bit of overlap. Dr. Shaffer is much more, much more focused on specifically the, the specific ecology of cypress trees in relation to their environment. And I focus on somewhat on more broader issues, but there is quite a bit of overlap. Q. By that, do you mean that Dr. Shaffer has a more narrow focus to his research? A. No. I don't mean that. Q. Okay. I did not mean to ask you to say anything negative about Dr. Shaffer. A. Ecology is a very collaborative science and it is very common for scientists

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to work together, and so -Q. Okay. So just within ecology, you each have focus more specifically on slightly different topics? A. Yeah. Yeah. Q. And Dr. Shaffer has focused more specifically than you have on the cypress trees themselves? A. Yeah. I think you could say that. Q. Okay. Can you explain how you and Dr. Shaffer went about preparing this report together? A. I think actually, if my memory serves me correct, I sought him out because of his expertise in cypress swamp ecology. And then working together, we developed an outline of the major points that we thought we would make in this report. And both -each of us took responsibility for separate sections and prepared the report. Q. Could we go through the report and would you show me which sections you took responsibility for and which sections Dr. Shaffer did. A. "Swamps for Hurricane Protection,"

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I think Dr. Shaffer took the lead in that. And all of this we both contributed, but he would have taken the lead in that section. And he would have been more, he would have had more responsibility on saltwater intrusion, although we both worked in that very much. Q. Okay. Just to make sure I'm following you on the record -A. This is the -- I'm using the headings, headings. This is on page 4. Q. So the first section you mentioned was "Swamps for Hurricane Protection" and that begins on page 3? A. That's right. Q. Okay. And Dr. Shaffer took the lead on that, you say? A. Yeah, but I hasten to stress that this was a very highly interactive activity. Q. Okay. And so then you went on to the section that begins on page 4 -A. Yeah. "Saltwater Intrusion," I think he would have taken the lead on that. "Development of the Mississippi Delta," I would, I took the lead on that. And I took

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

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can share. Q. Okay. But with respect to the actual documents related to this case that you received from plaintiffs' counsel, did you and Dr. Shaffer receive the same set of documents? A. Yes. Q. And you said you do have a list of what that included? A. Uh-huh. Yes. Q. Okay. On page 12 of your report, there is a list of "Literature Cited." Does this include everything you've relied on in forming the opinions in your report? A. No. Q. What -- what does this include? A. These include the references that we cited in the report that were specifically cited. Q. Okay. And what else did you rely on that's not included on this list? A. Well, there's an extensive literature on coastal and wetland ecology on cypress swamp that runs to hundreds of papers and scientific literature in books. And all

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

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witnesses on the Maurepas swamps where he conducted some scientific studies. I've read that over, you know, but, I mean, there are many. If you wanted, I could sit down and probably come up with a list, but it would be, you know, I think it ran to probably over a hundred articles, maybe several hundred. Q. Several hundred articles or one hundred to several hundred articles that you've reviewed? A. Yeah, I'm just guessing, because, you know, we're basing our -- there's a huge foundation of scientific literature that we're together know about. And then from that you distill specific papers that you want to cite here specifically. That's the difference. These are cited in this report. Q. Okay. Right, but you're, like, for example, the paper you referenced by Paul Kemp, that's something that you looked at, but you didn't end up citing it, but you considered it in -A. Yeah, exactly. Q. Okay. Considered it in coming to your opinions in this case?

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A. That's right. Q. Okay. And do you think it would be possible for you to recreate a list? A. Of all of those papers? Q. Uh-huh. Yes. A. Yeah, it would be possible. Q. Okay. A. This is sort of the normal way science is done is the reason I'm telling you this. Q. Right. I understand. I'm just trying to make sure I have a record of what you considered. That's all. Other than scientific literature, did you look at any other information? A. Other than scientific -- well, I mean, you know, I'm aware of press reports, of course, about the area. I've -- I've done work in that area extensively, and so I've made observations over the past several decades as I've worked down there. I probably didn't make it into the publications, but it affected the way I thought about the area. Q. Okay. And did you -- I note that

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on page 3 of your report it references a communication with Peggy McClain? A. Yes. Uh-huh. Q. Can you tell me who Peggy McClain is? A. She is a person from the Louisiana Department of Agriculture and Forestry. This is actually a communication that Dr. Shaffer did. Q. Okay. Do you know Peggy McClain yourself? A. I don't know her personally. I know of her. Q. Okay. Along with that reference to Peggy McClain, the report also references LADNR aerial imagery. A. Uh-huh. Q. Can you tell me what that is? A. Louisiana Department of Natural Resources' imagery of the coast. Again, this is a common way of getting information in science is speaking to people. Q. Okay. Is there anyone else that you spoke with? A. We later spoke with John Barras,

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who works for the U.S. Geological Survey in Baton Rouge. He's also a specialist on mapping of Louisiana coastal marshes. Q. Okay. What did you speak with him about? A. About maps or photographs at various times in, of that area. Q. And is he someone that you know through your professional career? A. Yeah. I know him professionally and personally. Q. Okay. And when you contacted him in preparing your report for this case -- I'm sorry. Did you contact him specifically in preparation of this report? A. Dr. Shaffer did. Q. Okay. Can you -- in addition to the LADNR aerial imagery that you referenced, were there other images or maps that you considered? A. We looked at an extensive photographs of the area taken prior to and during the construction of MRGO. We looked at maps and photographs and various reports. Q. Where did you get those

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photographs? A. I think it was supplied by the attorneys. Q. The photographs that are behind tab 1 of your report, is that the photographs that you're referencing now? A. That's -- that's part of them. Q. Part of them. A. These were selected from a much larger library of photographs that we looked at. Q. Okay. I would like you to take a look at this third item that I'm marking -MR. ANDRY: Day 3. Can I have a copy? MS. MILLER: Yes. MR. ANDRY: Thank you. EXAMINATION BY MS. MILLER: Q. Is this something that you prepared (indicating)? A. These -- these are documents that we provided to the lawyers. Mainly, I think the ones we cited in that report.

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MR. ANDRY: Do you know what Exhibit 3 is? EXAMINATION BY MS. MILLER: Q. Well, I was wondering if you could tell me what -- I guess that's what I was asking you just now. This document, you prepared this, is that correct? A. Dr. Shaffer and I put this together, yeah. Q. Okay. And you put that together to give to the plaintiffs' attorneys? A. You know, I think some of these, there was a request from the government for copies of all the articles. And so it was in response to that. They had some of these earlier, but I think we did this because they were requested. Q. Okay. So this document marked as Day 3, it is entitled "Day Documents," is that correct? A. That's correct, yes. Q. And you are saying that it was prepared and mostly contains what is in your list of literature cited on pages 12 to 14 of your report?

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A. I think that was the reason we did this. They were requested. And so we provided this. Q. Okay. And there are some things on the "Literature Cited" list on your report that begins on page 12 that are not in the list of "Day Documents?" A. They may have been provided earlier or they weren't requested. I'm not sure. Q. Okay. MR. ANDRY: To the extent there are questions about the origin or -- I don't really know what even Day 3 is, so to the extent there are questions about Exhibit Day 3 about what those documents, how they relate to the documents listed in his report, I just object to the form of those questions, but you can ask, but I just make a general objection to the form because I don't know if the witness knows or you know or I know what exactly Day 3 is and/or why it was prepared and when it was

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provided, but to the extent he can testify. I just object to the form of those questions, so that way I don't have to keep objecting every time and you can just ask him. EXAMINATION BY MS. MILLER: Q. Dr. Day, have you understood my questions about this document? A. With respect to what he just said, I'm not sure. Q. Okay. A. I know what these are (indicating). We were asked to provide a series of documents mostly in our report and we did that. Q. Okay. And did you actually type or produce this particular document? A. This sheet (indicating)? Q. Right. A. No. Q. Do you know who did? A. No. Q. Okay. A. We had, we had help. I mean, we didn't, Dr. Shaffer and I didn't do all this.

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

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and reviewed his report. Q. Did you -- had he completed his report prior to your writing your report? A. I think his was, he may have been in the process of doing it, but his was completed prior, yeah, prior to ours. Q. So you reviewed his final report -A. Yeah. Q. And did you rely on that in forming your opinions in this case? A. To some extent, yes. Q. Okay. Did you review the reports of any other experts in this case? A. I looked over not so much in detail, but I looked over a number of those reports, Kemp, Bea, just to get a feeling from what they were talking about, to see how this would fit in. Q. Okay. And did you attend any meetings in person with the other experts? A. Yes. Q. And did those meetings include plaintiffs' attorneys? A. Sometimes. Q. Do you know how many times you

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attended meetings with the other experts? A. No. Q. Would it be more than one? A. Oh, yeah. I would say it was more than a dozen. Q. Okay. And do you recall the time frame of those meetings? A. Well, the first meetings would have been late last year or early this year. Then regular meetings. I mean, some of the scientists I saw, if not weekly, almost weekly. Q. Okay. Other than the materials you've already described as having relied on and reviewed in preparation of your report, are there any additional materials that you reviewed to prepare for this deposition? A. Well, as I said, you know, there's a whole body of information, newspaper reports and discussions with people from the area. And so that fits into this, but scientifically, yes, the general area. Q. Okay. And are there any additional materials, such as maps, photographs or other exhibits that you think you may later want to

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

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A. I think probably that's a legal statement that would go into a report like this in general, but it would mean to me that if something came up that we hadn't seen that was pertinent, then we would incorporate that into our findings. Q. Okay. So it -- does it reference specific documents that you personally have requested? A. No. Q. Okay. Have you requested any additional documents from plaintiffs' counsel? A. No, I haven't specifically. Q. Okay. So just to kind of clarify the items that make up your report, we've looked at Exhibit 1, which is what was produced as your expert report. That includes the list of literature cited, your CV, Dr. Shaffer's CV and the eight photographs. We also looked at Exhibit 2, which is the page with your signature. Do you consider that to be a part of your report? A. Yes.

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Q. Okay. So do those two exhibits together make up your complete report? A. Yes, at this time. Q. Okay. I want to, I guess, now -we've gone over a lot of the background information. I want to turn to your actual opinions, but first I think it would be helpful if you could explain some of the terminology that you use. You reference the Central Wetlands Unit. Can you describe where that is located? A. The Central Wetlands Unit is located between the, what's called the 40 Arpent Levee, which is the back levee of the Mississippi in St. Bernard and Orleans Parish and the MRGO. And on the northwest, it's the Gulf Intracoastal Waterway. And on the east it is the Bayou La Loutre Ridge. Q. And does the MRGO, by that we're discussing the Mississippi River Gulf Outlet, correct? A. Yes. Q. And that crosses the Bayou La Loutre Ridge, is that correct? A. That's correct.

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Q. So when you refer to the Central Wetlands Unit, do you mean only the area, I guess it would be sort of on the south -A. The east. Southeast. Q. But west of the MRGO or south of the MRGO, is that correct? A. It's -- it's the downriver portion where the Bayou La Loutre Ridge connects from the Mississippi River to the MRGO levee, but then also we looked at the continuation of the Bayou La Loutre Ridge past that. Q. Okay. And is the part of the Bayou La Loutre Ridge that continues past the MRGO considered to be part of the Central Wetlands Unit? A. Wait. Restate. Q. The portion of the Bayou La Loutre Ridge that extends in the opposite direction of the river from the MRGO, is that considered to be -A. No. Q. That's not part of the Central Wetlands Unit? A. That's not part of the Central Wetlands Unit.

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Q. Okay. What is that area referred to as? A. The Central Wetlands Unit? Q. No. The other portion. A. Well, it's -- let's see. It had a name. It is not the Proctor Well -- it's the, that's called the Bayou La Loutre Ridge as it sort of went easterly and southerly from the MRGO. Q. Okay. Is -- can you describe the area that makes up the Pontchartrain Basin? A. The Pontchartrain Basin is bordered by the Mississippi River. It goes up to where the Mississippi River intersects with what's called the Pliestocine uplands, which is the high land when you get out of wetlands, and then over to Pearl River, but the basin itself includes the drainage that drains into that basin. So some of that goes up into Mississippi and then it comes down around Lake Borgne and out to the Chandeleur Islands. Q. Okay. So the Central Wetlands Unit is within the Pontchartrain Basin? A. That's correct.

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Q. Okay. Does your opinion relate only to the Central Wetlands Unit? A. No. Q. Okay. What area does your, do your opinions -A. Well, it would include the wetlands to the east of the Central Wetlands Unit around Lake Borgne, the area along the, along the Bayou La Loutre Ridge and even to the south of there. Q. Okay. You've also mentioned several deltas. These are on page 6 of your report. You reference the St. Bernard Delta, the Plaquemines-Modern Delta and the Lafourche Delta. Can you describe where those are? A. The Lafourche Delta refers to the delta lobe that was formed by the Bayou Lafourche distributary, the channel of the river. And the bayou, the St. Bernard Delta was the old deltaic complex that went out leaving the river somewhere in the New Orleans metropolitan area and going to the east. Bayou La Loutre Ridge is one of the old channels of that Delta. The Mississippi

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River towards its end, you get into what's called the Birdfoot Delta, that's the Belize or modern Delta. Q. Okay. And so the area -- is it correct that the area your report focuses on is the St. Bernard Delta? A. Yes. Q. Okay. A. And it also focuses on the whole Barataria Basin to some extent, I mean, the whole Pontchartrain Basin. Sorry. Q. Okay. I understand. And your report references baldcypress-water tupelo a number of times. Are those two species of trees? A. Yes. Q. Okay. And are they always found together? A. Not always, but generally vegetation communities are identified by their dominant, often identified by their dominant species that exist there. And cypress-tupelo are very, very commonly found together. Q. Okay. You also mentioned live oak.

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Is that a tree that grows in the Central Wetlands Unit? A. It would grow on the uplands, the well-drained natural levees. It wouldn't grow -- well, I guess in areas that there might be slightly elevated land. It wouldn't grow in an area that is permanently flooded, for instance. Q. Okay. Are cypress and water tupelo able to grow in areas that are flooded? A. Yes. Those are wetland plant species. Q. I see. Okay. So the live oak is not considered a wetland plant? A. No. No. Q. Okay. And do these trees, the cypress and water tupelo, do they grow in other areas of the Louisiana coast? A. Yes. Q. Okay. You also reference a combination of wetlands, marshes and swamps. Can you explain if there is a difference in those terms. A. Wetlands, wetlands refers to those plants growing in the wetland environment.

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And there are very specific definitions for that. Swamps refer to wooded vegetation. Forest, marshes would refer generally to grasses. Q. Okay. So the -- so grasses grow in a marsh area and there are different species of plants in a wetland area? A. Almost always, yeah. Sometimes you would find a wetland that would have just one species, but that's, that's not common. Q. I guess maybe can you explain in a little or explain again perhaps the difference between a wetland and a marsh? A. Wetland is the general term. A marsh is a wetland. A cypress-tupelo swamp is a wetland. Q. Ah, okay. A. It refers to the different kinds of vegetation communities that exist there. Wetland is the most general term. Q. I see. That clarifies it. Thank you. And what about when you refer to a forested wetland? A. That's another way of referring to a cypress swamp, but there can be other

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species that would make up a forested wetland. Q. Okay. In the area that is relevant to your report, are the cypress-tupelo trees the only type of trees that grow there? A. No, but those are the dominant species. Q. Okay. A. There are other species that grow along with them. Q. Okay. So I will get into the substance of your opinions now. On page 2 in basically the introductory paragraph, your report states that "baldcypress - water tupelo swamps offer excellent hurricane protection, while the intermediate and brackish marshes and open areas created by the Mississippi River-Gulf Outlet are much more inferior with regard to wind- and storm-surge reduction." Is this one of your opinions? A. Yes. Q. And what is the basis for this opinion? A. Well, the forests, one, are very

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resistant to being blown down by hurricanes. I think they are the third most resistant tree to being knocked down by, during hurricane winds. And second, because of their three-dimensional structure, they have a much more -- it is the friction of the water coming through. They affect both the surge and the waves on top of the surge. Q. Okay. So this opinion then references, I guess it is kind of twofold, and one portion of it means that the forest themselves are resistant to hurricanes, is that right? A. Uh-huh. Q. And then the second part of that, I gather, is that the forests, in addition to their own survival, have an impact on a hurricane surge and a hurricane's waves? A. That's right. Q. Or the waves from the hurricane surge? Yes? A. Yes. MR. ANDRY: You have to say yes. THE WITNESS:

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Okay. Sorry. EXAMINATION BY MS. MILLER: Q. Okay. Is -- can you explain the methodology by which you would measure the reduction in wind caused by the trees? A. Now, I said reduction in surge and waves. Q. Oh, okay. Sorry. Okay. So can you explain then the methodology by which you can measure the reduction in surge and waves? A. Well, you can do that in a number of ways. You can -- for instance, people looked at levees that had extensive wetlands in front of them and levees that didn't. The levees that had extensive wetlands survived for the most part. Second, people have measured the reduction of hurricane surge as it went across wetlands. And third, it's been observed that during storms in a forest, because of its three-dimensional structure, essentially, you know, a few hundred meters of forest will basically knock the waves off of the hurricane surge, will -Q. Okay. Have you yourself done any of these measurements that you reference?

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A. No. Q. Who -- where do you get that information from about the measurements that have been done? A. Well, there are a number of studies showing the decrease in the surge as the hurricane surge moves across wetlands. And there are model studies looking at wave dynamics in wetlands, in forests and observations. Q. Okay. Can you tell me in more detail about those studies, like how we might be able to locate them? A. I mean, one of the best known is the Corps of Engineers study where they had a general relationship between the distance of wetlands and the loss of hurricane surge. It was something on the order of two feet per mile. And there are other studies in other parts of the U.S. I mean, in other wetland areas where -Q. Okay. How did you learn of the Corps of Engineers study? A. It's -- it's in the Corps of Engineers reports and it is well-known. I

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mean, well, in south Louisiana especially. Q. Do you -A. I was in a meeting Friday where I showed it, presented it. I mean, it's been presented over and over. Q. Okay. Do you know how that study was done? A. It was an empirical study by looking at the surge of the coast, the surge reduction, the reduction in surge as it moved across wetland areas. Q. Was this with respect to a particular storm? A. No. This, this particular figure I'm talking about was with respect to a number of storms. Q. Do you know the year that that study was done? A. I don't know. Not off the top of my head. Q. Do you have a rough idea? A. It was maybe in the eighties or the nineties. Q. Okay. And do you know whether that study involved, maybe you already said this,

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but did it involve forested wetlands specifically? A. Well, it -- the wetlands that the storms moved across involved both marshes and swamps. Q. Was there any difference in the empirical values between a forested wetland and a marsh wetland? A. I don't know if it was in that study or not. Q. Do you know if in some other study such a difference has been calculated? A. Well, the -- for instance, the modeling studies that show that if you put, that show that if you put trees in a wetland, the surge is reduced and the waves are reduced on top of the surge. There are empirical studies, for instance, during the tsunami in the Indian Ocean a few years ago that areas with mangrove forests, for instance, had a great reduction of the surge as it moved through mangrove compared to areas that were cleared. Q. Okay. By areas that were cleared --

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A. Where the mangroves had been cut down or where there were no mangroves along the coast. Q. So it is comparing the mangroves to open water, is that correct? A. No, no. For instance, if people had come in and cleared the mangroves and planted rice or built houses or something there. Q. Okay. Do mangroves grow on dry land then? A. No. They are a coastal tree, a tropical coastal tree. Q. Okay. Are there any gauges that are able to measure the ability of wetlands, and specifically cypress swamps, to reduce storm surge? A. Well, people have used water level gauge data, and they have also, after Rita and Katrina, for instance, they've used strand lines to look at the surge at different areas as the hurricane surge moved across the coast. Q. What, a strand line? A. It is a debris line looking at --

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

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Team Louisiana report and they may -- well, they may be preparing it for publication in scientific literature now. In fact, I saw a manuscript. Q. A manuscript by who? A. The first author was a Dr. Hassan Mashriqui, who is at LSU. Q. And when did you see that manuscript? A. It was this year. Q. Did you speak with Dr. Mashriqui? A. Yes, I did. Q. About this study? A. Yes. Q. And who else did you say -A. In fact, I was the coauthor on that manuscript. I remember now. Q. I see. But you said you were not involved with taking the measurements yourself, is that correct? A. I didn't go out in the field and take the measurements, no. Q. Okay. Who else worked on that study? A. Well, Paul Kemp worked on it and, I

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

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elevation of the surge exceeds the marsh, then you're not affecting the waves on top of the surge. Q. Can you say that again? A. There is the surge, which is the water level itself that, you know, that comes up, and then on top of that there are waves that are generated by the winds. Q. Okay. A. So a three-dimensional forest will reduce the waves on top of the surge as well as reducing the surge. Q. Okay. And what you said a few minutes ago was that once the surge level, the total water level, exceeds the height of the trees or other vegetation, I guess -THE WITNESS: No. Marsh. MR. ANDRY: I object to the form of the question. EXAMINATION BY MS. MILLER: Q. Okay. So once the water level exceeds the marsh, the marsh no longer has an impact on the waves?

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A. On the waves. Q. And what is the -- how do you know that? A. Well, from reading the literature and also from talking to people who have measured it. Q. Okay. Do you have a background in hydrology? A. I'm not a hydrologist, but I would say fully a quarter of my publications involved making measurements, hydrological measurements, because they are so important in a lot of ecological studies. Q. And in those publications, would you generally work with other people who are hydrologists? A. Sometimes. And sometimes we did the work ourselves. Q. Okay. And have you yourself done any modeling of storm surge? A. No. Q. Have you done any modeling of hurricane wind? A. No. Q. So that would include -- the

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answers you just gave would include modeling of storm surge generally as well as specific to Katrina? MR. ANDRY: I object to the form of the question. EXAMINATION BY MS. MILLER: Q. That is, you haven't done any modeling of Katrina storm surges, is that correct? A. No. Q. And you also haven't done any modeling of Katrina's winds? A. No. Q. So -- okay. Do you -- has your research included any focus on the barrier islands? A. No. Q. Okay. Are you aware of whether barrier islands have an impact on storm surge? A. Well, the people who study them, the storm surge is reduced as it moves across barrier islands. Q. Is that something you know from

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literature? A. Yes. And speaking to people, experts. Q. Do you know whether that impact is something that's been modeled? A. Yeah. It has been modeled. Q. Okay. Do you know how that modeling is done? A. Only very generally. Q. Okay. Do you know who or can you tell me how to look into any of that modeling, like where those modeling results might be published? MR. ANDRY: I object to the form of the question. EXAMINATION BY MS. MILLER: Q. You can answer if you know where modeling of barrier islands impacts on surge is published. A. I know some of the people who are doing that modeling, if that is what you mean. Q. Who is that? A. Greg Stone at LSU. Johannes

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

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Are you familiar with that report? A. Uh-huh. Q. Have you read it? A. Not in its entirety. I've reviewed it, but, yeah, I've read it. Q. So you've read sections of it? A. Yeah, that's right. Q. Is that one of the things you relied on in forming your opinions for this case? A. Yes, uh-huh. Q. Okay. Have you or are you familiar with the Interagency Performance Evaluation Task Force report, also referred to as IPET? A. I'm familiar with it, yeah. Q. Have you read that report? A. I've seen it and I've looked at it in much less detail than the Team Louisiana report. Q. Okay. A. And I've also spoken with people about the IPET report. Q. Who have you spoken to about the report? A. Well, Paul Kemp, Ivor Van Heerden,

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Hassan Mashriqui. Rick Luettich was the guy in North Carolina. I was trying to remember his first name. Q. Okay. Have you -- so you've mentioned he's someone that does the storm surge modeling? A. Yes, uh-huh. Q. Okay. Did you talk to him in advance of preparing this report? A. No, not specifically. I know Rick Leuttich, but I didn't talk to him about this report. Q. Okay. Are you familiar with or aware of the Independent Levee Investigation Team, also called ILIT? A. I'm aware of it, but that's about it. Q. Okay. Did you review that report? A. No. Q. Okay. Have you talked to anyone about that report? A. Not really, not in any detail. Q. On, also on page 2 of your report includes another statement in the introductory statement that the "construction

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of the MRGO, the severing of the Bayou La Loutre Ridge and the steady influx of salt water into the baldcypress-water tupelo swamps in Orleans and St. Bernard Parishes quickly and directly killed much of this previously-thriving, extensive habitat." Is that one of your opinions in this case? A. Yes. Q. And what do you base that on? A. Based -- that is based on knowledge of salinity tolerances of cypress-tupelo and other fresh vegetation. It is based on data, on pre- and post-salinities in that area, pre- and post-MRGO salinities, and it is based on maps of, pre- and post-maps of vegetation communities in the area. Q. So you referenced as the basis for that opinion your general knowledge through your professional work. You've also looked at salinity studies from pre-MRGO construction to and post-MRGO construction. And then the third thing you referenced were maps of the vegetation communities and you said pre- and post. By that you mean

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pre-MRGO construction? A. Yes. Q. And post -A. And also part of this, specific letters from natural resource agencies commenting on the probable salinity impacts of construction of the Mississippi River Gulf Outlet. Q. Were those state agencies? A. State and federal agencies. Q. And how did you obtain those letters? A. Well, I saw them referenced in the Team Louisiana report. Q. Did you read the letters themselves? A. I've read parts of them, yes. Q. I think in your report you reference one specific letter. It's on page 5. A. That's correct. Q. Is that what you are referring to? A. Yes. Q. So you read that letter? A. Uh-huh.

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

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

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

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

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

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referenced? A. Yes. Q. Okay. And these are things that you reviewed in forming your opinions for this case? A. That's right. Q. And in these studies, you talk about people going out into the area. And were they actually sampling the water? A. Yes. MR. ANDRY: I object to the form of the question. Go ahead. EXAMINATION BY MS. MILLER: Q. So the studies included taking water samples? A. Well, just measuring the salt in the water. You don't need to take a sample if you have a meter to do it. Q. Okay. Were any of these -- did any of these studies measure a change over time? A. Yes. Taken together they all measure change over time. From a system that was predominantly fresh, supporting the cypress community, to one that was

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predominantly salty where the vast majority the cypress had been killed. Q. Okay. I can't remember what your answer was with respect to the study that you conducted with other people at LSU. Was that published? A. It's published. It's a technical report. Q. Okay. And is that listed on your -- would that be listed on a full copy of your CV? A. Yes, it would. Q. Okay. But it is not listed on the cite here? A. No. No. MR. ANDRY: Can we take a break to go to the bathroom? MS. MILLER: Sure, that's fine. We can take a break. VIDEOGRAPHER: It is the end of tape 1. We're now going off the record. (RECESS TAKEN)

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VIDEOGRAPHER: This is the beginning of tape 2. We're now back on the record. EXAMINATION BY MS. MILLER: Q. Okay. During the break, Mr. Andry provided me with copies of this document (indicating). Are you familiar with this document? A. Yes. Q. Can you tell me what it is. A. This is a "Study in Wetland Management" of St. Bernard Parish prepared by Coastal Environments, Incorporated published in 1982. Q. Is this one of the studies you referenced earlier? A. Yes. Q. So what Exhibit 4 -- I've marked this as Exhibit 4, is that right, on the front? A. Yes. Q. So what this includes is a cover page, is that what the first page is, from the study? A. That's the cover page, the title

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

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

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A. So you want me to do the whole area. Q. You can draw the triangular area. A. So this right here. The reason that's not designated in part of this report, this is a report on St. Bernard Parish. This small triangular is in Orleans Parish, but it is part of the same physiographic unit. Q. Okay. And on this map you referenced the 40 Arpent Levee. Is that the line that separates section C from section F? A. Yes. Q. Okay. And is -- you said that section F is the developed or urbanized area. Is that considered part of the Central Wetlands Unit? A. No. That's outside of the Central Wetlands Unit. Q. Prior to it being developed, was that area wetlands? A. Some of the marginal areas might have been wetlands, but in general that defines the limit of the well-drained land adjacent to the Mississippi River and the old Bayou La Loutre Ridge.

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Q. Okay. Okay. This -A. And I'd also like to point out the Bayou La Loutre Ridge which starts at the Mississippi River at Poydras and then moves out past what's called Yscloskey, Hopedale, and it continues on past the MRGO out towards the letter M and L in there. And that is an old channel of the Mississippi River. And so it has an elevated ridge. Q. On -A. You want me to mark that? Q. Sure. I was going to ask, it looks like there are some dashed lines. Do those correspond -A. Where, where are the dashed lines? Q. It looks like at section V, which -A. That looks like it outlines -- it separates units that they have identified. And so they are just drawing lines between their units. Yeah. For instance, T is the Bayou Terre Aux Boeufs area. And so -- and S is what they called the Middle Bayou area. And M is the Eloi Bay. MR. ANDRY:

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Eloi Bay or Bay Eloi. THE WITNESS: Bay Eloi. And R would be the Lower La Loutre Ridge. So these are somewhat natural physiographic subunits in this basin that they have identified for the purposes of describing them and suggesting management for them. EXAMINATION BY MS. MILLER: Q. Sure. I think it probably would be helpful if you wanted to go ahead and mark where you described the Bayou La Loutre Ridge. A. The Bayou La Loutre Ridge, it runs from Poydras. And I'll just -- generally this sort of runs down the middle of the ridge (indicating). Somewhere out here it probably has very little surface expression anymore because these ridges form and then they slowly sink. Q. Okay. A. And this part of the ridge, for instance, there, prior to MRGO, there were

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both cypress and oak forests. Q. Is this map of a large enough scale that you can show where those forests are that you just referenced? THE WITNESS: Can I refer to that photo? MR. ANDRY: Yeah. You can refer to whatever you want to refer to. THE WITNESS: This is a color map provided by John Barras of the U.S. Geological Survey showing the wetland units, the physiographic vegetation units in this area in 1978 and 1956. So this is 1956. This is part of the information that you can obtain from the -- it is U.S. government information. EXAMINATION BY MS. MILLER: Q. I'm going to mark this as an exhibit as well, Day No. 5. MR. ANDRY: Okay. MS. MILLER:

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I don't want to block any of these maps. MR. ANDRY: Put it right up here (indicating). MS. MILLER: Is that okay (indicating)? MR. ANDRY: Uh-huh. EXAMINATION BY MS. MILLER: Q. Okay. So can you describe -- you said the left-hand figure is 1956. A. 1956. You can see the Bayou La Loutre Ridge coming out here. And the green refers to what are called levee forests, well drained enough to support non-wetland vegetation. And then the orange refers to cypress. You can see extended out well beyond the point where the Bayou La Loutre Ridge was intersected by MRGO, which comes about here (indicating). Q. Sorry to interrupt. It looks like there are two shades of orange. What is the distinction between the two? A. This right here (indicating)? Q. Uh-huh.

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

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dominated -- this would be dominated by oaks. The orange represent cypress-tupelo swamps, so they extended well out on the Bayou La Loutre Ridge. And then the, what would you call that, a pale orange -Q. I'm not really sure. A. Are fresh marshes, and they also extended out along the Bayou La Loutre Ridge. MR. ANDRY: Just for the purposes of the record, it might be helpful if you just had him, to the extent he's -there are two different color oranges. Just have him draw F or write FM in the area that indicates fresh marsh and C in the area that depicts cypress, and that way you can have -THE WITNESS: C will be cypress and F will be fresh marsh. MR. ANDRY: That way the record is clear as to what part he's talking about. THE WITNESS:

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And green, just for a general way of describing it, I'm going to call it an oak forest. This is G (indicating). EXAMINATION BY MS. MILLER: Q. Could you also, I don't know if you can fit your letters into the brown and red areas, but could you include on your list -A. I'm going to call that U just as a general term for urban or developed. Q. Okay. And the -- is there a difference between what you're calling U and, for example, these dark areas over here (indicating)? A. Well, that would be -- no. I think that also is developed land. Q. Okay. A. That reddish and brownish. Q. Okay. A. So we can put a U here. But, I mean, it is not necessarily urban in the sense you think of it. It is developed land. Drained. Q. Okay. Do you know how that map was created?

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

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

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saltwater marshes. Q. Would you go ahead and write the year on the right-hand side as well? A. It is written right here, if that's sufficient (indicating). Q. Oh, sure. MR. ANDRY: For purposes of the record, when you are discussing an exhibit, if you would, Mr. Day, refer to what particular place as best you can describe it -THE WITNESS: Okay. MR. ANDRY: -- so when somebody is reading the record later -THE WITNESS: All right. MR. ANDRY: -- they will know where you were referring to as far as the writing is referred to in the document. THE WITNESS: All right.

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EXAMINATION BY MS. MILLER: Q. Do you know what year or years that the 40 Arpent Levee was constructed? A. No, but it indicates it was constructed between 1956 and 1978. Q. Okay. It looks to me like these maps are showing slightly different locations. A. Yeah. This one cuts off about right there (indicating). In other words, it does not show the 40 -- the Bayou La Loutre Ridge beyond the MRGO in the 1978 photo. Q. It looks like the 1956 map also does not show the river. A. That's right. The salient things that this shows is, one, that the MRGO is in place, and, second, that used to be predominantly fresh are now more salty. Q. Okay. Do you agree that it also looks like -- well, okay. First, the colors that you described in the 1956 map, are those the same colors that are shown -- like do the same colors represent the same thing in the 1978 map? A. The green and red represent the

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same thing, urban and well-drained forest, non-wetland forest. The -- in this one, a tan refers to more brackish marshes, and in this one it is more yellow. The main thing is that there is almost a complete loss of the freshwater vegetation by 1978. Q. In the 1978 map, what is the bright yellow color? A. That is what's called the Shell Beach Road. It comes out here and this is a, it now has levees in it. There's a -- it comes out to the MRGO here (indicating). Q. And that's a road? A. Yeah. You can see it existed, the road also existed here (indicating) in 1956. This is this same area. Q. When you describe there being levees in the 1978 map, is that, are those levees that were constructed after 1956 and prior to 1978? MR. ANDRY: I object to the form of the question. Go ahead. THE WITNESS: Yeah. I'm saying that because they

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are straight lines here. That indicates there is a levee. And once they put in a levee and pump, then terrestrial vegetation can come in. EXAMINATION BY MS. MILLER: Q. Do you know when the levees along Shell Beach Road were constructed? A. I don't. Q. So you are surmising from looking at these two maps that they were constructed after 1956 and prior to 1978? A. Yes. Q. And that's something that is a man-made structure? A. These levees, yes (indicating). You can see them if you go out there. Q. Are you -- when you say these levees, it looked to me like you were pointing to what you had described as the 40 Arpent Levee. A. Well, that's a general term that people use. It refers to the distance from the river out to where the levee is. Q. Okay.

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A. I'm just -- I'm referring to the straight lines along here there. There are levees there now. I know they are there. You can see them. Q. Okay. So when you reference those levees, that includes the area along Shell Beach Road, is that right? A. Yeah. Q. Okay. And so the yellow on the 1978 map, could you tell me again what that color represents? A. I'm not exactly sure why he's using a different color for that yellow. It may indicate a developed area. I don't have the color code, so I don't know what that is. Q. Okay. And it looks like there is also a light green color on the 1978 map that is not on the 1956 map. Do you know what that color represents? A. That's the spoil bank of the MRGO. Q. Okay. And is it green because there is some sort of vegetation growing on it? A. Well, because when the spoil was piled up, it raised the elevation of the

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

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U that is lower spoil, I that is called middle spoil, and H, that is called upper spoil, is that correct? A. That's right. Q. So from what you were describing in reference to Exhibit 5, are all of the spoil areas along the MRGO that are represented in Exhibit 4, would those have vegetation growing on them? MR. ANDRY: I object to the form of the question. EXAMINATION BY MS. MILLER: Q. Do you know whether -A. There is some -- yeah, there is vegetation there. Q. Okay. Do you know whether the vegetation that has grown on the spoiled banks of the MRGO extends through all three areas that are marked on Exhibit 4 as H, I and U? A. I have not been out to this distal part of the MRGO since the hurricane, so I really don't know what's there, but we've been into this area since then -- it's sort

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

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

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

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in this area. Then down in this part of the area I've been working almost continuously on a study looking at the effects of river diversion into this area in the last two decades almost (indicating). Q. And that study you're referencing on Exhibit 4, the area marked D? A. D and T. Q. And T. Okay. A. And also off of this map (indicating). Q. Off of this map -A. Well, I mean, to the southwest. Q. Okay. And I think you had said before with respect to the triangular area near the section marked B, the Exhibit 4 was something that was prepared with respect to St. Bernard Parish. So is the boundary line that we see on the southwest corner, is that the parish boundary? A. Yeah. It runs just -- it runs between B and the triangular area (indicating). Q. And then farther south from that -I just want to make sure I understand that

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

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Unit and this area in the upper was much fresher area supporting a cypress swamp and after the MRGO, due to saltwater intrusion, those freshwater areas were killed and either went to open water or were replaced by more saline vegetation. Q. Okay. Did you review any maps that reflect which areas became open water and which areas became saline vegetation? A. Yes. Several things happened. One, vegetation was lost because spoil was placed directly on top of it. Vegetation was lost because it was dredged, turned into MRGO. So it went from vegetation to open water or vegetation to spoil. Fresher vegetation was lost because of saltwater intrusion. And some of that vegetation turned into open water and some of it turned into more saline vegetation. Q. Okay. And do you have any maps that illustrate what turned into saline marsh as opposed to what -A. There are a series of reports where a number of values for acreages for all of those different conversions are given and

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

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caused saltwater intrusion and caused the loss of the freshwater vegetation. Q. Okay. Right. My last question was not very specific, but in addition to the two reports you referenced that give values or try to calculate the amount of wetlands change and the amount of wetlands lost, you reviewed those two reports, but not any other ones for this purpose? A. Well, I mean -MR. ANDRY: I object to the form of the question. You can answer. THE WITNESS: You know, it is looking for salinity data pre- and post-MRGO and vegetation data pre- and post-MRGO. These maps were produced in these two reports, but then there are discussions in these other reports, Rounsefell's report, the Texas A & M's reports, of generally what the community looked like.

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EXAMINATION BY MS. MILLER: Q. Okay. A. So I'm basing my, these opinions on all of this literature. Q. Right. Okay. But with respect to the -- you listed two reports that give values. Those are the only two reports that give numbers that you reviewed in preparation of your expert report? A. We used a lot of values. Those are the two that come to mind. Q. Okay. Your report refers to the cypress habitat being quickly and directly killed. Can you describe what you mean by those words? A. Over, you know, a few years, one to two to three years, as opposed to decades or even centuries, there was a very rapid conversion, loss of the cypress swamp, due to the salt intrusion after MRGO was constructed. The salt came in, it killed the freshwater vegetation. Q. And where -- how do you -- where do you get that time frame from? A. Based on the maps that are

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

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as it does, you know, on the order of centuries or millenia. It changes, it makes these major changes in course. And as one new lobe begins to form, the old lobe begins to deteriorate as subsidence takes place and as freshwater is preferentially put in another area. These changes take place over really long, centuries-type of change. And so that's the process, very simply put, the process the Delta is built. Now, but the important thing here is since the Delta formation started about six thousand years ago, there was a net growth of the Delta. It was developing in certain areas and deteriorating in other areas, but there was a net overall growth starting at basically zero, six millenia ago, up until about, to about 25,000 square kilometers at the beginning of the 20th century. Then there was a major change due to human activities. So the important thing to understand, in the natural stage these changes take place rather slowly. And then once humans get into the act and isolate the river from the Delta and change hydrology dramatically, then it Page 111

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

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

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western Louisiana had massive death of freshwater marshes over there. Q. Where is the Houma Channel? A. The Houma Navigation Channel runs more or less from the Gulf of Mexico up to the city of Houma west of Bayou, I think, Petite Bayou, but I'm not sure. Q. And where is that in relation to New Orleans? A. Houma is to the west. Q. Okay. A. Roughly south of Lafayette maybe, Thibodaux, Baton Rouge. MR. ANDRY: It is in Lafourche Parish. THE WITNESS: Yeah. MR. ANDRY: Lafourche or Terrebonne. THE WITNESS: Yeah. So I guess my point is is this death of this vegetation due to saltwater intrusion here fits into a larger pattern that we've seen a number of times, very clear Page 114

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kind of result and recognized over and over. EXAMINATION BY MS. MILLER: Q. Okay. When you talk about the Delta formation as a whole, you have referenced the freshwater, by that are you referencing the river, the Mississippi River water? A. Well, there are two major sources of freshwater in the natural Delta. One is the river itself, which is flowing over its bank. It is using old channels and, you know, there is a whole myriad of channels. And then there is also the rainfall that falls on the Delta itself. And it falls and, you know, is concentrated in these upper basins. That, tied into these old distributary ridges, like the Bayou La Loutre Ridge, prevent saltwater intrusion. So even in areas that have, where the river is no longer flowing in in a major way, the rain-fed areas concentrate freshwater in these upper basins and they are protected from the saltwater intrusion by the integrity of these old ridges.

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

Page 116 the river regularly left its course, channel, the major channel and flowed out into the wetlands. So the river could change course like this and make a completely new river over here (indicating). And that happened from time to time, but also these what's called crevasses where the breakout is not as big and it functions for a few years, a few decades, and it seals itself off, and these are called crevasses. And that was a very common way that river water was introduced into these river basins. Q. And does that still occur? A. It occurs -- the only place it occurs now is down south on the river where the levees stop. Q. Okay. So the levees that are currently -A. The flood control -- the Mississippi River flood control levees. Q. I'm sorry. Go ahead. A. Stop the introduction of river water until you get down south of here when the levees end. And then you can see in photos it flowing out again.

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Q. Okay. And do you know when those levees were constructed? A. Well, levee construction started in the 18th century, but the modern integrated flood control levee system was put in place after the 1927 flood. Q. Did the levees that were, that began being constructed in the 18th century, did those contribute to preventing the development of these crevasses that you described? A. Yeah, but -- yes, they did certainly in places, but that levee, until it was integrated into this major federal flood control program, it just failed repeatedly. Q. Okay. And since the federal flood control levees along the river were constructed after the 1927 flood, has there been any flooding of the river or crevasses that allow the freshwater -A. Into this area (indicating)? Q. Yes. A. No. There is now a river diversion, an artificial re-introduction of the river water at this point at a place

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

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

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

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MR. ANDRY: Off the record. (LUNCH RECESS) VIDEOGRAPHER: We're now back on the record. EXAMINATION BY MS. MILLER: Q. Dr. Day, beginning on page 9 of your report, you list a number of factors related to human activity that you say led to the massive loss of wetlands. I would just like to go through these. The first one you have listed here is "Flood-control levees along the Mississippi River resulted in the elimination of riverine input to most of the Delta." Does that cover what -- can you explain what you meant by that? A. That was done in two ways, one, the construction of flood control levees along the main stem of the river, and second was the closure of old channels, old distributaries, as they are called. Do you know what a distributary is? Q. Is that what -- you can go ahead and explain it.

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

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

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

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sediment retention is. Q. Okay. And do you know when those dams were constructed? A. Well, they were constructed over a century probably. Q. Which century? A. Well, beginning now. Probably even the latter part of the 19th century, but mostly the 20th century. Q. Okay. Can you be anymore specific with the most -- the earliest dam construction? A. No, I can't. Q. Okay. And by "suspended sediment load," could you explain what that term means? A. It's the nondissolved material that's in the river. It's what makes it look muddy. Q. And is that what -- I think you had referenced earlier that carries nutrients? A. No. Well, some of the nutrients are attached to the sediments, but most of them are dissolved in river water. Q. Okay. So it's the water itself

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

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

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

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

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

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

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

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

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

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

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about a hundred acres of cypress swamp. And this whole area where saltwater from MRGO killed the cypress swamp. So it is illustrative of what we're talking about, how a little bit of freshwater can go a long way, but -- so -Q. Okay. And just to make sure that the record is clear, you're referencing Exhibit 4 in the area located in the part marked C, but just east of the letter F on that map, is that correct? A. Yes. Q. And that's where there is approximately a hundred acres of cypress trees? A. Yes. And it is still there. Q. So are you saying that the sewage discharge, that's freshwater that gets into that area? A. Yes. Q. Okay. A. It's treated sewage, and so it's not raw sewage. Q. Is there any raw sewage that is discharged into these waters?

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

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

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

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

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

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

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killed by salt when the Calcasieu River Channel was dredged. Q. Okay. Is that a fresh marsh plant then? A. That's a fresh marsh species. Q. Okay. So you listed a few grasses as being in the brackish category, but that's not exclusive to grasses grown a variety of different -A. It depends on the species. Q. Okay. A. For instance, Spartina patens is the dominant species in what we call brackish marsh. And then Spartina alterniflora is the dominant species in what we call saline marsh, but Spartina patens also occurs in salt marsh, but a cypress would never occur in a salt marsh or a brackish marsh. It is too high, the salinity. Q. I see. With respect to the maps that you've been referencing, for example, Exhibit 5, the colored maps, I think you said that those maps are a standard way of assessing the types of marsh that are in the particular area.

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MR. ANDRY: I object to the form of the question. You have to say yes or no. I notice you shook your head. THE WITNESS: Repeat the question. EXAMINATION BY MS. MILLER: Q. Sorry. I guess I just wanted to -if I could just start over with the question, I guess. I was trying to understand how these marsh types are measured and how someone in your field goes about quantifying the extent of marsh in a particular area. Can you explain that process? MR. ANDRY: I object to the form of the question. You can answer if you can. THE WITNESS: Well, it's a combination of looking at photos. It's a combination of doing ground truthing. You know what that means? EXAMINATION BY MS. MILLER:

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

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to a group of species representing another. Q. Okay. So do you know when the earliest map was created that shows the different vegetation types? A. There are maps from the late 1800s that indicate wetlands in cypress swamps. And there have been regular ones. The ones we used right here was in 1956 because that was well documented. Q. What do you mean by well documented? A. Well, people went out, identified the vegetation. They were able to measure salinity. They were able to photo-interpret it so that everyone would have agreed that that was a cypress swamp, for instance. Q. Okay. So are you saying essentially that the technology had improved by 1956 versus a map that might have been in the 1800s? MR. ANDRY: I object to the form of the question. THE WITNESS: Yes.

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EXAMINATION BY MS. MILLER: Q. So over time then, would your map that you show in 1978 be more precise than the 1956 map? A. I wouldn't think so, not -- not at this level of detail. I mean, there's no doubt about this area in the Central Wetlands Unit was mostly cypress swamp, which is fresh, and freshwater marsh. Well-documented, well-characterized. Q. Okay. I'm trying to understand how these maps are created. Is it still the case when the maps are created today to illustrate the vegetation types? What is the process for making those today? MR. ANDRY: I object to the form of the question. THE WITNESS: I don't understand your question. EXAMINATION BY MS. MILLER: Q. I guess -- is there any difference in technology now than there was in 1956 in terms of how these vegetation maps are created?

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

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

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

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

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

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thousands of acres of wetlands and led to the indirect death of tens of thousands of additional acres of wetlands. The second half of that sentence, the indirect death of tens of thousands, is that what you just referenced with the salinity and the larger area? A. Yes. That would include the death of fresh vegetation in Central Wetland Unit and in a much larger area. Q. Which includes the area surrounding Lake Pontchartrain? A. Yes. That's right. Q. Okay. And what about the first part of that sentence, can you explain where that comes from? A. That comes from the direct placement of the spoil from the construction of the canal itself and from the filling of water bodies that were once open. Q. Which water bodies do you mean? A. Well, sorry. That would be even in addition to that. So you have -- it's basically the direct placement of spoil along the MRGO from all the way up almost to the

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

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

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Q. Okay. VIDEOGRAPHER: Excuse me. Go off the record to change tapes. It is the end of tape 2. We are now going off the record. (RECESS TAKEN) VIDEOGRAPHER: This is the beginning of tape 3. We're back on the record. EXAMINATION BY MS. MILLER: Q. We've just been going over some of the numbers that you reference in your report. Is it possible to -- you apparently attribute the loss of certain numbers of acres of wetlands to the MRGO, is that right? A. The direct loss. Q. Okay. And you've also attributed some numbers to the indirect loss, is that right? A. (Witness nods head.) Q. Yes? A. Yes. Q. With respect to the things we discussed that you've listed on page 9 and 10

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

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

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and 15,000 indirect, those you are attributing entirely to the MRGO? A. Yeah, direct and indirect impacts. Q. Okay. Can you explain then -well, in addition to impacts from the MRGO, have measurements been made of the numbers of acres of wetland loss from other causes? A. In this area? Q. Yes. A. Yeah. I mean, they have been made throughout the Pontchartrain Basin. And, but again, the rapidity of which these changes happened coincident with the construction and just post-construction clearly separates that from a long-term, more gradual wetland loss in the broader basin. Q. Are -- can you explain the measurements that have been made attributing loss to other causes? A. In general? Q. Yes. Well, in this area. For example, you have mentioned in your report and discussed here today that oil and gas canals are located throughout this area. Has there been any measurement made of the

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canals that were dredged in the coastal zone, and by area. Barras would have those numbers. Q. Okay. Are there other causes or other -- have measurements been made attributing loss to other causes? A. In this specific area? Q. Yes. A. Well, my recollection is there are almost no oil and gas canals in the Central Wetland Unit if you look at it. You see almost none in there. There are some to the east and to the south, but I don't think there are any in there. I'm thinking of, you know, when I looked at those maps, I don't recall seeing any dredge canals for oil and gas in there. Q. Okay. But other than oil and gas and the MRGO, have measurements been made to quantify loss or change in wetlands associated with factors such as the lack of -A. Well, there are two things here. One is quantifying the rate of change. Q. Okay.

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A. All right. You do that from mapping studies. Secondly is attributing that loss to certain causes. All right. That's a separate thing. Q. Okay. A. And in this case, because the MRGO was so dramatic and so big and caused such demonstrable effects, it's rather easy to attribute most of the, well, to attribute the loss of the freshwater vegetation here to MRGO. Q. And in general how does a scientist in your field go about attributing loss to other causes? A. Well, you look at the pattern of loss, you know, both the aerial extent of certain vegetation types and what those vegetation types were and you look at what environmental parameters changed over the period when that loss occurred, and then, based on your knowledge of how these systems functioned, you basically attribute loss to them. And in this case, you know, the canal was dug, the salinity went up rather

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

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

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

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functioned. That's to me necessary then to understand specifically how this fit into that framework (indicating). Q. Okay. So when you refer to the isolation of the Delta by the Mississippi River levees or from the river by the levees as the most important factor to the Delta as a whole, I guess could you explain why you consider the isolation of the river as the most important factor for the Delta as a whole? A. Well, I mean -MR. ANDRY: I object to the form of the question. Go ahead. THE WITNESS: I studied deltas all over the world. It is rivers that build deltas. So if you didn't have the river, you wouldn't have the delta. So if you take away the river, which we in effect have done, then you put in the processes, this pattern of wetland loss. And that happened over a century. We lost

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about 25 percent of them, but then if you look at different parts of the delta, you begin to understand the relative importance of these different factors. For instance, at the mouth of the Atchafalaya River, wetland loss is very low. The river is still going into there. You can say hypothetically if there were no levees here in this area and water was flowing out of the Mississippi every year en masse, we wouldn't have seen these changes, but we had the levee there, and there was this long gradual process taking place. Then MRGO was dredged and, boom, the salt comes in and kills the freshwater vegetation. It is very clear. EXAMINATION BY MS. MILLER: Q. Can you explain how subsidence factors into this? A. Subsidence is a characteristic process in most deltaic ecosystems. And as Page 167

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

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

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

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Q. Uh-huh. A. That shows two things. One, the dredging of the channel. That's the initial channel. And second, it shows the extensive cypress forest was there, which no longer exists. So those were the two things there. Q. Where did you obtain this photograph? A. This was in a group of historical photographs of the area that was given to us on a CD. Q. Given to you by the plaintiffs' attorneys? A. Well, I think these are Corps of Engineers photos, but I got them from the attorneys in this case. MR. ANDRY: For purposes of this record, this set comes from, I think they are mixed in his report, but the ones that don't have the information at the bottom come from the New Orleans Public Library, and I think the ones -THE WITNESS: Page 171

Yeah. These are from the Corps of Engineers. MR. ANDRY: Like 127 are from the Corps of Engineers and they describe on the bottom what the picture was for. EXAMINATION BY MS. MILLER: Q. Okay. So the first photo that has the number 57 at the bottom, do you know the location of that area? A. I think this is in the upper reach of MRGO. This is the upper part of Reach 2. I think that's that turn there. Q. Okay. Do you know what that is in the right? It looks like there is a road or something. Do you know what that is on the right? Yes, that (indicating). A. I'm not sure, but I have a suspicion that that might be what's -- a berm is built to contain the dredge spoil and that may well be -- MRGO was dredged in two events, I guess you would say. They dredged the small channel the whole way and then they came back and widened it, which this is a photo of that right there (indicating).

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Q. Is that something that you -MR. ANDRY: This is another photo from the same set that shows how they dredged. I was going to ask him about it. You are free to use it, but, I mean, it is the same photo, it wasn't attached to his report, but it is the same set of photos. But it shows what he's talking about, how there was an access channel and how it all was built. EXAMINATION BY MS. MILLER: Q. Okay. A. The purpose of these photos were just to generally indicate vegetation types and dredging activity and how it affected those areas. Q. Okay. A. You can see here that they are beginning in this 57, they are beginning to cut the channel wider. Q. Okay. And what is the next one showing? A. Well, that's -- I guess it is

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

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

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

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

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

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

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Q. Okay. A. And you also see trees in here (indicating). Q. The next photograph is MRGO-photos-141. A. You see several things here. You see the initial narrow channel. You see the back channels. You see the enlargement of the channel. The dredge is now dredging out that final strip of land in the middle of the photo. You see where the land was cleared of trees in the foreground, which will then be dredged. And you see on either side of the channel swamp vegetation. Q. And the next one is MRGO-photos-163. Can you describe this one? A. This is looking generally back towards New Orleans. I think Lake Pontchartrain is in the background. And so you see an extensive cypress swamp on the far side of the MRGO channel. You see the dredge operating to the left. In the center of the photograph is one of those strips that has yet been dredged. It's being dredged now. You see the pipe pumping the slurry into the

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

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Central Wetland Unit was created by the dredging of MRGO, I mean that physiographic area. Q. I see. A. So I think the upper part is in the Central Wetlands Unit. Q. Okay. And this is one, the one we were just discussing, the number 266, does not have a caption. Does that mean from what Mr. Andry was saying that this comes from the library? MR. ANDRY: Yes. THE WITNESS: Yes. EXAMINATION BY MS. MILLER: Q. Okay. And you just selected those eight photographs as sort of a representative sample, is that what you said? A. Yes, that's right. Q. You also referenced in your report historic photos in Penland report as one of your citations. A. Which page is this? Q. It's on page 4.

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

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

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have any aerial photos, so you have to take them in general, but it is true that many of the lakes that have opened up are fairly closed back then. Q. Okay. I'd like to go through the rest of these as well, but are these the set of historical photographs that -A. That are in Penland's report. Q. -- that you were referencing? A. Yes, uh-huh. Q. Okay. So the second one says on the bottom, has a label "Historical Data Dated 1764." Can you describe what that shows? MR. ANDRY: I object to the form of the question to the extent you just asked him what it shows. I won't make a speaking objection. I will just say I object to the form of the question and you can ask whatever you choose. EXAMINATION BY MS. MILLER: Q. All right. I can rephrase my question. Have you seen this image before?

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A. Well, when I reviewed his report. And there are a number of images like this if you collect all the maps. There are books of old maps of Louisiana. It is a thick book. It shows that, you know, the river, New Orleans, and it shows you the sort of general outline of where some of the main water bodies and wetland areas were. You'll notice that Lake Pontchartrain is -- Lake Pontchartrain is actually elongated east-west, and this seems to be elongated north-south, so it gives you some idea of the inaccuracies of this. And also it shows, for instance, in this area that's called Detour des Anglais, I think that's referring to the British troops in the War of 1812, that's where -- or maybe not, because that's earlier, but -- well, maybe that's English Bend. Yeah. That's what it is. MR. ANDRY: It is English Turn. THE WITNESS: English Turn, yeah. EXAMINATION BY MS. MILLER: Q. Okay. In the river? Page 186

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

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

Page 188 EXAMINATION BY MS. MILLER: Q. Okay. So we're back to discussing the one labeled "U.S. Coast and Geodetic Survey Map Dated 1932." A. I would interpret this one, the darker areas next to the river are the developed areas, the higher areas. And then you have this area, which is consistent with the previous photo of forested wetlands. And then the coastal marshes. Q. Okay. I don't know if we necessarily need to look through each of these individually. Is there -- you cited these in reference to a statement that the semi-enclosed nature of this area, referring to the Central Wetlands Unit and adjacent to the Bayou La Loutre Ridge, and the exclusion of deadly saltwater allowed the survival of these swamps. Can you explain how these images support that statement? That's on page 4. A. Well, I would point to the aerial photograph dated 1965 showing the Mississippi River Gulf Outlet that would have brought saltwater directly into the area. And in the

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

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twisting and turning, crossing MRGO through the structure and then on into this area (indicating). Q. Do these photographs -A. Excuse me? Q. If you compare the one titled "Aerial Photograph Dated 1965" to the one following that in 1985, is it, in sort of the center of the bottom half of the photograph, it looks like, is that the Paris Road, Paris Road and the Paris Road bridge? A. Yeah. That's right. Q. And is there, is that developed area alongside, if you can see right here where I'm pointing in the 1985 photo, it looks like -A. Yeah, that's developed area. Q. Is that Paris Road? So how -- and that was not present in the 1965 photograph, is that right? A. Uh-huh. Q. And does that -- was there additional development of the land in this area besides this portion alongside Paris Road?

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A. Wait. Say that again. Q. After 1965, we can't see the entire Central Wetlands Unit in the 1965 picture, but I wondered how much development occurred in the St. Bernard area after 1965. A. Well, the main, if you look at 1965, you can see the back, the 40 Arpent Levee is in place. And so essentially all development occurred within that levee. Q. Okay. A. You can see that in the '85. And then a little bit of dredge and fill activity along the Paris Road. Q. Okay. So that development along Paris Road dredged material was, they built up the land there a little bit, is that right? A. Well, in 1985 what probably happened, you can see in that development there's a central water area, that was probably dredged out creating this adjacent higher area using the spoil from that dredging. Q. Could you tell me where that water -- you said a water development area?

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

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

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

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that right? A. Uh-huh. Q. And then brackish and then salt? A. Uh-huh. Q. Okay. Make sure you say yes and no. A. Oh, I'm sorry. Yes, yes and yes. Q. Okay. So fresh, intermediate, brackish and then salt? A. Yes. Q. In terms of increasing salinity? A. That's correct. Yes. Q. That's correct is fine also. Okay. So had you reviewed these particular maps prior to seeing them in Shea Penland's report? A. Well, I think he prepared these based on a number of others. As I say, there are several sets of these maps that wetland scientists in Louisiana are very familiar with and they are certainly consistent with those. This specific imagery, I think, he might have produced himself. Q. Okay. A. But I've often reviewed the maps.

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

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

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

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

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in an area where we are using treated sewage effluent, it is treated, and introducing it into a forested wetland north of Lake Pontchartrain and planting trees at the same time to restore forests there. Q. Okay. I think I'm pretty close to the end of what I want to ask about. So if we could take a break and I'll just -MR. ANDRY: That's fine. I'll figure out if I have any questions. VIDEOGRAPHER: Off the record. (OFF THE RECORD) VIDEOGRAPHER: We're now back on the record. EXAMINATION BY MS. MILLER: Q. Dr. Day, you identified approximately 30,000 acres of loss that you attribute, of wetlands loss that you attribute to the MRGO. A. Wetlands loss or wetlands change. Q. Okay. So not all -- okay. A. Some cypress swamp is now salt marsh, for instance.

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

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

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

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

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was answering your question. So I would object to the form of the question to the extent that you are attempting to say now that he is rendering an opinion that is not in his report. He has testified extensively about what's in his report and answered your questions. EXAMINATION BY MS. MILLER: Q. Is it your opinion based on the work you've done for this case that the MRGO allowed water to travel in -A. That is my opinion, but it is based on reports of other people. I mean, it is not in my report, but from what the reports that they submitted, I'm convinced that that's the case. My expertise is on what happened to the freshwater wetlands and what the causes were. Q. Okay. A. So two different things. Q. In your opinion, is there something that the Corps of Engineers did wrong? MR. ANDRY: I object to the form of the

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question. It is beyond his report and beyond the scope of the deposition in 702C. I'm sorry. Did I -- well, I should have let you finish your question. EXAMINATION BY MS. MILLER: Q. I'll start over with the question. You discussed a number of impacts that the MRGO has had. With respect to the construction of the MRGO, do you have an opinion on whether there was anything the Corps did wrong? MR. ANDRY: I object to the form of the question. To the extent you are able to offer some answer. THE WITNESS: They did everything wrong. EXAMINATION BY MS. MILLER: Q. Okay. I guess I should rephrase my question perhaps. In your opinion, what did the Corps of Engineers do wrong with respect to the Mississippi River Gulf Outlet? MR. ANDRY:

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I object to the form of the question on numerous grounds, but I object to the form of the question. To the extent you can answer. THE WITNESS: They put it in the wrong place. They didn't follow the advice of the natural resources agencies that provided comments on it. They provided no mechanism for control, saltwater introduction. They didn't, you know -- they could have used -- there was no beneficial use of dredge spoil deposits. They created a deep channel which allowed saltwater intrusion and storm surge. I mean, it is a poster child, you know, my general opinion, not my expert in ecology, it is a poster child of what could go wrong when you build a thing like this. EXAMINATION BY MS. MILLER: Q. You have referred to in your report and we have discussed today what in your

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report you referred to as a 1958 Interior study or Interior report. I just wanted to show you -MR. WILES: You mean the Department of the Interior? MS. MILLER: What's that? MR. WILES: You mean the Department of Interior? EXAMINATION BY MS. MILLER: Q. In the report, it is just referenced as Interior Report. So I wanted to show you this document and ask you if this is what, I guess before I mark it as an exhibit, if this is what you are referencing when you refer to it, Interior report (indicating). It's on page 5, April 1958 Interior report. A. Yeah. This is one of the ones. Q. That's one of the reports? A. Yeah. That's one of them. Q. Did you review other reports from the Department of Interior?

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

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Wildlife Service and you cite an April 1958 Interior report. A. Yes. I think that -MS. MILLER: Okay. If you think there is a need to make that an exhibit, we can. I just wanted to clarify what the reference was. MR. ANDRY: To the extent you showed it to him, you might as well just make it an exhibit. EXAMINATION BY MS. MILLER: Q. All right. I'll mark that Day No. 8. Have you done any work or collaborated on any projects or research with the Corps of Engineers? A. Yeah. Q. Can you describe that work? A. Well, they go back many years until the seventies. They funded -- I've worked on a number of projects that they have funded, research projects through LSU. I also worked in the Corps of Engineers on a variety of

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

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

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deposition for today. A. I was informed by the lawyers that it was today. I don't think I read that. Q. You can take a look at this. Is that something you've seen before (indicating)? A. What's that? Q. Is that something you've seen before? A. I don't think I saw this unless it was sent to me by e-mail. Q. Okay. A. I was informed. Q. On page 3 there is a page titled Exhibit A to Notice of Videotaped Deposition and it lists materials. Did you bring any materials listed on that exhibit today? A. Well, we have all these materials here. Q. You have -- what do you mean by all these materials? A. It says: "Any and all materials considered or relied on by the deponent in connection with this litigation." We have a lot of it here, I guess.

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Q. Okay. A. Okay. You have the final part of the report. "Any and all documents regarding any work that the deponent has contracted to perform or has performed for any governmental agency." I didn't do that. MR. ANDRY: We'll provide that. It is my understanding from the progress of litigation that all of this information was produced prior to the deposition. To the extent it hasn't been, we will provide that information, but when we made the expert declarations, it was my understanding that all of that was produced at the time by Andy Owen with Pierce O'Donnell's office. MS. MILLER: Okay. I know we didn't receive all of these things. MR. ANDRY: What things in particular? MS. MILLER: We have not received documents

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relating to work with government agencies. And from what Dr. Day has testified to today, I understand that we haven't received all the materials considered or relied upon in connection with the litigation or preparation of the report. THE WITNESS: We were told by -- one of our attorneys told us that if we were confident the Corps had this or knew they had it, we didn't have to produce it. MS. MILLER: Okay. I think that's all of my questions. Thank you, Dr. Day, for your answers. THE WITNESS: Thank you. EXAMINATION BY MR. ANDRY: Q. I just have a few questions so that I can -- we talked about a photograph that I had that I brought that was part of the set from the Orleans Parish library and I wanted

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to ask you a few questions. It is Day Exhibit 9. MS. MILLER: Do you have a preference where I put the sticker? MR. ANDRY: No. It doesn't make any difference. MS. MILLER: Do you have a copy -EXAMINATION BY MR. ANDRY: Q. Have you ever seen that photograph before? A. Yeah. Q. Is that photograph similar to and as part of the photographs that are attached to the back of your expert report, which is Exhibit 1? A. Yes. MS. MILLER: Can I look at that copy? MR. ANDRY: Sure. EXAMINATION BY MR. ANDRY: Q. And can you tell me what photograph

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Day Exhibit No. 9 depicts? A. It is looking north on the, where the MRGO channel would finally be looking north towards the Intracoastal Waterway. And it shows the access channel that was initially dredged. It shows the dredge in the front conducting the dredging. And the spoil, the slurry pipeline from which the dredge spoil is deposited. It is running across the area to this, it looks like a canal. You can see the pipe running across that area and discharging into the spoil disposal area, which shows the area covered by the slurry mud. It indicates the final width of the MRGO. Q. And that's the final width of MRGO would be depicted by -A. The dashed lines. Q. The dashed lines. But that's the final width as depicted by the photograph in the 1960s when it was first constructed? A. That's right. Q. In looking at the photograph, a different photograph, that was attached to your deposition where they're doing the

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

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

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

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2004 and 2005, do those photographs depict the loss of the wetlands in those areas -A. It depicts one -Q. -- consistent with your testimony? A. Yeah. It depicts this ridge. I think this is the Bayou La Loutre Ridge prior to the MRGO. MS. MILLER: Dr. Day, which picture are you looking at? THE WITNESS: This is aerial photograph dated 1958. And, unfortunately, the one following it doesn't show -EXAMINATION BY MR. ANDRY: Q. But in looking at it, let me ask you this question. This structure here, it appears to be bayou, the Michoud Canal (indicating). A. Yeah. Q. And that's the same as this structure here? A. Okay. Uh-huh. Q. So from a point of reference, and specifically my question is in the one dated

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

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talk about wind throw from -- and that you mentioned that live oak, cypress and tupelo stands are better for storm surge resistance -- actually, let me ask you the question this way. Your report specifically states that "live oak and palms are more resistant to wind throw than baldcypress and water tupelo," is that correct? A. Uh-huh. Q. And that baldcypress and water tupelo, on a continuum, you would have live oak, cypress and then marsh, is that correct, as far as resistance to wind throw? A. Yeah, except you wouldn't talk about wind throw in terms of the marsh. You know, it can't be knocked down like a tree. It can be disturbed, but I don't think it is perfect to say wind throw when you are talking about the marsh. Q. But in looking at -- let me ask you this. Would the live oak, palms, baldcypress and water tupelo also be more resistant to storm surge in conjunction -- as the same as it would be more resistant to wind throw? MS. MILLER:

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I object to the form. THE WITNESS: Can I answer? EXAMINATION BY MR. ANDRY: Q. Did I ask that properly? MS. MILLER: You can answer it. THE WITNESS: I can go on. Okay. Well, the thing is about the palms and the live oaks, they are on the uplands. They are not wetland trees. That's the thing about that, the cypress and tupelo are wetland trees and grow far out in the wetlands. So in that sense, the distribution of live oak was much narrower than the distribution of cypress forests. EXAMINATION BY MR. ANDRY: Q. I understand, but didn't you testify that there were or that you would expect to find oaks along -A. That's right. Yeah. Q. -- the ridge of the MRGO? In marsh ecology, would you also not

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

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

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Miss Miller. I noticed while she was examining you that at the bottom of the thing, it's a U.S. Army Engineer District Mississippi River Gulf Outlet, and then July 9, 1958, and then at the bottom it says: "View east vicinity Station 110, GIWW at right." Does that reference tell you where the photograph or what the photograph depicts? A. The GIWW at right -MS. MILLER: Which? EXAMINATION BY MR. ANDRY: Q. I'm just telling you "View east vicinity Station GIWW at right," that statement on the bottom. MS. MILLER: Which page? MR. ANDRY: It is 133. I'm sorry. EXAMINATION BY MR. ANDRY: Q. Is that statement indicative of what's depicted in the photo? A. Yeah, because this is running down

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

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now going off the record. (OFF THE RECORD) VIDEOGRAPHER: This is the beginning of tape 4. We're back on the record. EXAMINATION BY MS. MILLER: Q. Dr. Day, you were just discussing what was marked as Exhibit 9, this photograph (indicating). Do you know who put those labels on it? A. I don't. Q. And can you show or describe in this photograph where any cypress trees are located? A. Well, I know this area, so there are cypress trees are back -- this is looking west as the access channel comes and joins towards New Orleans here. So it is going to be dredged much bigger. I think this is Bayou Bienvenue coming across the upper part of the photo, so there are cypress trees in there (indicating). Q. You are pointing to the right-hand side. A. Yeah. Yeah. And there is also --

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

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Q. Okay. If you'll look again at the exhibit, I mean, Appendix B from Dr. Penland's report, Historical Maps and Aerial Photography. That was -MR. ANDRY: Number 6. It is Exhibit No. 6, right? EXAMINATION BY MS. MILLER: Q. Exhibit 6, I believe. I've gotten a little bit confused. A. Yeah. Q. Yeah. Exhibit 6. Mr. Andry asked you to look at the photographs from '58, '65 and later and compare certain things about them. Are these -- it appears to me that these photographs are taken -- are they in different scales? A. Well, yeah, they show different areas. The Gulf Intracoastal Waterway in '58 is crossing the top there. Q. And some are closer images to the ground and some were taken from farther away, is that right? A. That's right. Q. Okay. Does that impact your

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ability to compare from one to another? A. Not to the extent that the questions were asked. Q. Okay. And you were describing how these show a loss of wetlands. Can you explain what it is you're looking at that depicts a loss of wetlands? A. Well, you can see this area opening up in the '65 photo, this, in the triangle area we were talking about before (indicating). That's the New Orleans sewage plant. Q. Okay. A. There's been a loss of cypress dying out in there. You can see ponds opening up in this region right here (indicating). You can also begin -- in the next photo, you can see the complete loss of the cypress wetlands between Paris Road and the sewage plant of New Orleans and also you can see the beginning of the, I mean, not the beginning, but the erosion of the marsh edge along the MRGO and Reach 2. Q. I'm sorry to stop you just for a second. In that photo, it's the 1985 frame?

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A. Yes, in the 1985. Q. And are you saying that the area in the left, bottom left-hand corner between Paris Road and the sewage plant, was that loss, are you attributing that loss to the MRGO? A. Well, that's the continuing loss. I would -- yeah, I would say so. And also it looks to me like part of this was impounded, those square areas, and they open up by 1985, which looks to me like a breach in levees. Q. And impoundment would have been an intentional enclosure of that area, is that right? A. Yeah. We are trying to ascertain what that is, in fact. We haven't yet. Q. Okay. So you are not certain what happened with that rectangular area in the bottom left-hand corner of the photos from 19 -- well, 1985 and then it is a little more in the middle of the photo from 1965 -A. Yeah. Q. -- is that right? Okay. And that's the area in between the Paris Road bridge and the sewage

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plant? A. That's right. Q. I'm trying to make sure when we read it we can understand what we are talking about. I would also like you to say, if you can, with either the photograph labeled 1958 or 1965, are you able to see where any cypress or other trees are depicted in those photographs? A. Well, they would have been along the salt ridge here, which is the Gentilly Ridge (indicating). Q. And that's north of the GIWW, is that what you are pointing to? A. North of the GIWW. And then cypress swamps existed here in the 1965 photo around the sewage treatment plant. You can see it beginning to disappear. Q. Okay. A. And along the -- it used to exist along the edges of the 40 Arpent Canal. Q. Are you saying that in the 1965 photograph, the trees still exist there? A. No. They didn't exist at that point. I think this -- I'm not exactly sure,

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but I think this white signature is what you are seeing as water there where the forest used to be. And you are seeing a reflection off the water just as you see it in that kind of long linear lake right above there. Q. Okay. A. Are we looking at the same one, 1965? Q. 1965. Yeah. Okay. A. When the sun is directly overhead, you get this glint off the water. So I would think that that, my guess would be that that is an area that cypress has died and you are seeing the water. Q. Okay. But to some extent, you are guessing about what these depict? A. Yeah. Q. And is the loss that you've just described along the 40 Arpent Canal, do you also attribute that to the MRGO as the cause? A. Well, to the extent that there were cypress forests there, it was fairly narrow here along the -- beginning at Paris Road, the mapping showed a rather narrow zone of cypress forests and then in increasing,

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following generally where we see that white area, the 40 Arpent Canal goes straight and then there's a turn towards the bottom of the picture. The mapping that I've seen basically shows a great extension of the cypress forest then in that area. And that's what I'm guessing. I'm -- it looks to me this is what it is. Q. Okay. So you're relying on things you've seen in other maps to infer what this photograph shows, but it's not very clear on this photograph to make any judgment with certainty? MR. ANDRY: I object to the form of the question. EXAMINATION BY MS. MILLER: Q. Is that a fair statement? A. You make your judgment based on photos, what you know that's on the ground, maps, that kind of thing, so all of that comes together. Q. Okay. Right. And that's what you are relying on -A. Yes.

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Q. -- in trying to interpret this photograph? A. Uh-huh. MS. MILLER: Okay. I don't have any other questions. VIDEOGRAPHER: This concludes the deposition. We're now going off the record. (Whereupon, the deposition was concluded at 3:53 p.m.)

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REPORTER'S CERTIFICATE I, MARGARET MCKENZIE, Certified Court Reporter, do hereby certify that the above-named witness, after having been first duly sworn by me to testify to the truth, did testify as hereinabove set forth; That the testimony was reported by me in shorthand and transcribed under my personal direction and supervision, and is a true and correct transcript, to the best of my ability and understanding; That I am not of counsel, not related to counsel or the parties hereto, and not in any way interested in the outcome of this matter.

MARGARET MCKENZIE, CCR, RPR, RMR, CRR CERTIFIED COURT REPORTER

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WITNESS CERTIFICATE I, PROFESSOR JOHN W. DAY, JR., do hereby certify that the foregoing testimony was given by me, and that the transcription of said testimony, with corrections and/or changes, if any, is true and correct as given by me on the aforementioned date.

DATE SIGNED

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WITNESS' SIGNATURE

Signed with corrections as noted. Signed with no corrections noted.

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DATE TAKEN: November 19, 2007

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