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which most contested facts will be resolved before an agency instead of in a trial. Thus, the adequacy of a particular flow will be addressed in hearings before an agency's administrative law judges or hearings officers. As instream flow needs are recognized as beneficial, there will be interagency agreements, agency reservations of flow, or appropriations for instream values. When action is brought under these conditions, the factual issue will often be whether the agreement or rights have been violated. This will significantly alter the burden of proof which is placed on the biologist. Of course, even with these changes, there will be court actions and the basic rules of evidence of presentation of expert testimony will come into play. These rules will be examined below in the section dealing with adjudi- catory administrative hearings. ADMINSTRATIVE TRIAL-TYPE HEARINGS Increasingly, State and Federal agencies are holding administrative trial-type hearings. The rules for presenting the expert testimony in trials and adjudicatory-type administrative proceedings differ little. In each situa- tion the expert witness is asked to testify about his knowledge on technical questions relevant to the issues being tried. It may be helpful to remember that conclusions and opinions generally are not permissible forms of testimony and that an exception to this rule is made for expert testimony under the theory that laymen would be unable to draw conclusions in difficult technical areas without the assistance of experts. But it is only when the person testifying is truly expert in the field that his opinion testimony is permitted; i.e., he is drawing upon his expertise in making a conclusion when the laymen (judge or jury), given the same facts, could not render a con- clusion. On occasion the expert will be asked to render an opinion on the ultimate question; e.g., he will be allowed to give his opinion that the permit for a power plant discharge should call for a minimum discharge of 1,000 cfs. More often a biologist will be allowed to say what the effect of a 1,000 cfs discharge on the aquatic habitat would be. The point is, the expert witness in his proper role is providing a part of the technical base upon which decisions are made. For him to render a judgment on questions in which other disciplines come into play is to enter fields in which he is not expert and in which he cannot render assitance to the trier of fact. The relatively new Federal Rules of Evidence (Pub. L. 93-592, Jan. 2, 1975) shed some light on those things to which an expert can testify. In regard to expert witnesses, Rule 702 follows a liberal line of court decisions which require that the expert's testimony be of assistance to the trier of fact, not that the area testified to must be beyond the comprehension of an average individual. Under this rule, formal education does not provide the sole basis for qualification as an expert: Skill, experience, or training are also of importance. Rule 704 provides that testimony embracing the ultimate issue to be decided is not objectionable if otherwise admissible. In a recently completed trial in Federal Court, where four expert witnesses testified, the Judge, himself, posed questions to the witnesses involving the 2