1

DIVISION OF ADMINISTRATIVE HEARINGS

2 DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA

3 SUGAR CANE GROWERS COOPERATIVE )

OF FLORIDA; ROTH FARMS, INC.; and )

4 WEDGWORTH FARMS, INC., )

Petitioners, )

5 vs. )DOAH Case No. 92-3038

SOUTH FLORIDA WATER MANAGEMENT ) 92-3039

6 DISTRICT, an agency of the State ) 92-3040

of Florida; et al., ) 92-6796

7 Respondents. ) 92-6797

- - - - - - - - - - - - - - - - - x 92-6799

8 FLORIDA SUGAR CANE LEAGUE, INC., ) 92-6800

UNITED STATES SUGAR CORPORATION; )

9 and NEW HOPE SOUTH, INC., )

Petitioners, )

10 vs. )

SOUTH FLORIDA WATER MANAGEMENT )

11 DISTRICT, an agency of the State )

of Florida; et al., )

12 Respondents. )

- - - - - - - - - - - - - - - - - x

13 FLORIDA FRUIT AND VEGETABLE )

ASSOCIATION; LEWIS POPE FARMS; )

14 W.E. SCHLECHTER & SONS, INC., )

and HUNDLEY FARMS, INC., )

15 Petitioners, )

vs. )

16 SOUTH FLORIDA WATER MANAGEMENT )

DISTRICT, an agency of the State )

17 of Florida; et al., )

Respondents. )

18 - - - - - - - - - - - - - - - - - x

100 Southeast 2nd Street

19 Miami, Florida

March 28th, 1994

20 9:30 a.m. - 2:45 p.m.

21 DEPOSITION OF DON MARTIN FLEMING

22 Taken before BARNET I ABRAMOWITZ, court

23 reporter and Notary Public in and for the State of

24 Florida at Large, pursuant to Notice of Taking

25 Deposition filed in the above cause.

APPEARANCES

3 ON BEHALF OF THE PETITIONERS FLORIDA SUGAR CANE

LEAGUE, INC., UNITED STATES SUGAR CORP., and

4 NEW SOUTH HOPE, INC.

5 EARL BLANK KAVANAUGH & STOTTS , P.A.

One Biscayne Tower - Suite 3636

6 Two South Biscayne Boulevard

Miami, Florida 33131

7 BY: WILLIAM L. HYDE, ESQ.

ON BEHALF OF THE RESPONDENT-INTERVENOR

9 UNITED STATES OF AMERICA

10 KATHY STARK, ESQ.

Assistant United States Attorney

11 99 Northeast 4th Street

Third Floor

12 Miami, Florida 33132

1 INDEX

2 Witness Direct

D. MARTIN FLEMING

By Mr. Hyde: 5

EXHIBITS

NUMBER DESCRIPTION PAGE

1 Document entitled: 7

7 Research Assignment

8 2 Bibliography 39

9 3 A document entitled: 42

Colonial Waterbird Nesting in

10 Southern Florida,

October, 1993 through April,

11 1984

12 4 A document entitled: Bird 47

Ecology Studies

14 5 Memoranda - in-house planning 48

reports

6 Draft of Evaluation of the 63

16 Proposed Shark Slough

17 7 A document entitled: Modified 68

Water Deliveries to Everglades

18 National Park, Florida

19 8 A document entitlted: Differing 69

Viewpoints on Restoration

20 Approaches For the Everglades

Ecosytem: A Crituque of Walters,

21 et al., 1992

22 9 A document entitled: The Need 75

For a Landscape Perspective in

23 Everglades Restoration Efforts

1 10 A document entitled: Colonial 78

Wading Bird Distribution and

2 Abundance in the Pre- and

Post-Drainage Landscapes of the

3 Everglades

4 11 A document entitled: Colonial 79

Wading Bird Nesting in the Pre-

5 and Post-Drainage Landscapes of

the Everglades

12 A document entitled: The 80

7 Importance of Landscape

Heterogeneity to Wood Storks in

8 the Florida Everglades

9 13 A document entitled: American 81

Alligator Nest Distribution, Nest

10 Abundance, and Reproductive

Performance in Relation to

11 Landscape Characteristics of the

Southern Everlades

14 A document entitled: 82

13 White-Tailed Deer Distribution

and Abundance in the Everglades

15 A document entitled: The Snail 85

15 Kite in the Florida Everglades:

A Food Specialist in a Changing

16 Environment

17 16 A document entitled: 88

Status and Ecology of the Cape

18 Sable Seaside Sparrow

1 Thereupon --

2 DON MARTIN FLEMING

3 was called as a witness and having been first duly

4 sworn, was examined and testified as follows:

5 DIRECT EXAMINATION

6 BY MR. HYDE:

7 Q. Would you please state your full name and

8 address for the record, please

9 A. Don Martin Fleming, I live on 420 Thumper

10 Thorofare, Key Largo, Florida, 33037.

11 Q. Mr. Fleming, my name is William Hyde and

12 I'm with with the law firm of Earl, Blank, Kavanaugh

13 & Stotts, and I'm here to depose you today in a case

14 which I think you are somewhat familiar, the

15 so-called Everglades SWIM Plan case.

16 Are you in fact familiar with that?

17 A. Yes.

18 Q. You have been identified as a potential

19 expert witness on behalf of the United States, which

20 is a proponent of the Everglades SWIM Plan.

21 And for the purposes of my questioning,

22 from now on when I say the "Everglades SWIM Plan" or

23 "SWIM Plan" or even "Plan," I'm referring to the

24 March 1992 SWIM Plan. If I mean anything else, I

25 will tell you. Okay?

1 A. All right.

2 Q. My purpose in questioning you here today

3 is to find out what opinions and testimony you might

4 offer in a final hearing on that matter, and then to

5 find out what are the bases for those opinions.

6 So I would ask you to be as clear as

7 possible in your answers to me. If you do not

8 understand a question I pose to you, please tell me

9 and I will attempt to reformulate it or restate it in

10 some different way.

11 If you don't tell me that, I'm going to

12 assume you understand my question and you are

13 attempting to be responsive to it. So it is very

14 important that we appear to be on the same page.

15 A. All right.

16 Q. Also, should your counsel object at any

17 time, it would be my suggestion to you that you

18 simply pause for a moment and let the attorneys work

19 out the objection.

20 In most instances, you will still be

21 required to answer the question, but there may be

22 some rare instances where Ms. Stark will tell you in

23 effect not to answer, and that's just something that

24 the two of us will have to deal with. That's not

25 going to be your concern. Okay?

1 A. All right.

2 Q. What I would like to do first is to take

3 you through a few questions regarding your

4 background, educational experience, and work

5 experience.

6 Just prior to the deposition, Ms. Stark

7 handed me a document which I think at least in part

8 is something of a resume for you.

9 Perhaps we can identify this as Exhibit 1,

10 and you could tell me what that is.

11 (Fleming Exhibit 1 was marked for

12 identification)

13 BY MR. HYDE:

14 Q. Mr. Fleming, could you identify what's

15 been labled as Exhibit 1 for me, please.

16 A. This was a research assignment document

17 prepared to identify -- for my being familiar with

18 the research and grade evaluation schedule within the

19 federal government.

20 Q. How old is this document, to your

21 knowledge?

22 A. It is approximately four years old.

23 Q. Beginning on page 5 of this document, I

24 see something that looks more or less like a

25 traditional CV or resume? Would that be a correct

1 characterization of that and the following pages?

2 A. Yes.

3 Q. You just stated that this document takes

4 you through about four years ago. Let me ask, at

5 least as to the information contained here,

6 particularly pages 5 through 14, is the information

7 set forth in there correct and accurate, to the best

8 of your knowledge?

9 A. Yes.

10 Q. What new, if anything, should be added

11 since this document was prepared approximately four

12 years ago?

13 A. On page 9, it would include being assigned

14 to a science position within the federal government

15 within research grade evaluations. I've also been

16 appointed as a member on the Crocadilian Specialist

17 Group of the IUCN International -- International

18 Union for the Conservation of Nature, the IUCN.

19 And then again on page 11 and 12, listings

20 publications, there are four drafts that we submitted

21 to publication. Four of us have been accepted for

22 publication and are in press; two of those have been

23 submitted to journals and are in review at the

24 present time.

25 Q. Do you recall the titles of those

1 documents?

2 A. More or less, yes. They are also in

3 there.

4 Q. Perhaps you could just start then by terms

5 of the subject matter?

6 A. Okay. There are three publications that

7 deal with Colonial Wading Birds in the Everglades.

8 Basically they focus on empirical as well as modeling

9 evidence as to the causes of declines in Wading Birds

10 in the Everglades and the characteristics of those

11 populations in pre-drainage and post-drainage over

12 time up to the present.

13 There's a fourth paper dealing with the

14 need for landscape perspective in Everglades

15 restoration efforts, which takes the results of those

16 three Wading Bird papers plus a great deal from the

17 ecological area and tries to plan out the major

18 restoration elements.

19 Q. To which journals have these studies been

20 submitted?

21 A. Two of the Wading papers,

22 E C O L O G I A, one Wading Bird paper to

23 Environmental Management, the fourth one, I can't

24 give you the name -- it was presented in a symposium

25 being edited by Dr. Westra, and it is going to be

1 published in one of the write-ups of symposium

2 proceedings, and he is involved in editing the papers

3 right now. So I don't really know the final title he

4 will label that.

5 And then the remaining two that are in

6 press were submitted to -- in review, I mean, were

7 submit to American Midland Naturalist.

8 Q. Perhaps I'm a little confused by your

9 answer, but were there four papers overall?

10 A. Six.

11 Q. Oh, six. Excuse me. So the final two

12 were to American Midland?

13 A. Are in review.

14 Q. What are those documents concerned with?

15 A. One of those concerns alligators in the

16 Everglades and deals with primarily characteristics

17 that affect their reproductive performance.

18 The other papers deal with White-Tailed

19 Deer in the Everglades, and again presents empirical

20 evidence on characteristics that affect the

21 White-Tailed Deer population in the ecosystem.

22 Q. Other than those six studies, are there

23 any additional publications which you care to list

24 for me? This list will be found on page 11-13 of

25 what we have called your resume -- actually it is

1 11-12. There appears to be a missing page 13 here.

2 A. I think it is just a typo because here is

3 7 and here is 8, and I don't see any other

4 publications I have done that are missing off of this

5 list.

6 Q. So other than the documents which you have

7 just enumerated, this would be a fairly complete list

8 of your studies?

9 A. I think there's a draft paper that's just

10 in press that's included in this box.

11 Q. What's the subject matter of that

12 prepartory paper?

13 A. A critique of a paper published by Walter

14 Dineen.

15 Q. We will get to that in a while.

16 Q. Anything else that you would add to

17 Exhibit 1 in terms of your educational work and

18 experience?

19 A. From the employment date up to the present

20 time, probably -- this doesn't reflect, I am now a

21 government technical representative on several

22 cooperative agreements with several major national

23 labs and a university to develop a simulation

24 modeling system for the Everglades.

25 And that's what I have been doing since

1 this document was turned in, in terms of a lot of my

2 research activity and publishing these from past

3 studies; I've been a general tech representative on

4 the modeling.

5 Q. What is a "GTR"?

6 A. Government technical representative, and

7 you are responsible for insuring that that the

8 technical work products that are due to the

9 government in a cooperative agreement with a

10 university or a national lab, are completed on time

11 and meet the specifications that were out laid in the

12 original cooperative agreement.

13 Q. Which university or labs are you presently

14 affiliated with in this regard?

15 A. One is Oak Ridge National Laboratory in

16 Oak Ridge, Tennessee; the University of Tennessee;

17 and they have a little group called the Ecological or

18 Environmental Modeling Institute of the University of

19 Tennessee.

20 And also Chesapeake Biological Laboratory

21 at the University of Maryland.

22 Q. Are these studies all concerning the same

23 subject matter, that is, modeling for the Everglades?

24 A. Yes.

25 Q. Why are they different studies with

1 different labs?

2 A. Different areas of specialized skills.

3 The Chesapeake Biological Laboratory, there's a

4 professor who is developing a simulation model for

5 lower trophic groups of organisms in the Everglades.

6 And the scientists at Oak Ridge and the

7 University of Tennessee are working with us in

8 developing simulation models for what we call

9 intermediate trophic levels, fish, large

10 macrovertebrates, as well as high orders of

11 vertebrates, top level carnivores in the system like

12 alligators, crocodiles.

13 Q. You referred to lower trophic orders or

14 levels. What are you referring to there?

15 A. Taking macrophytes, algae, your basic

16 bacteria, those types of things, as opposed to

17 macroinvertebrates, fish, crustacians, which we refer

18 to as intermediate trophic levels.

19 Q. I notice on your CV that you have a degree

20 in biology in the Centre College of Kentucky?

21 A. Correct.

22 Q. Is Centre College part of the University

23 of Kentucky system?

24 A. No, a private college.

25 Q. Was there a particular area of

1 concentration in your undergraduate degree?

2 A. Biology.

3 Q. Do you have any other breakdowns?

4 A. No, the first two years were pre-med

5 oriented, and then we could specialize a little bit

6 more in fields of biology where I took a community

7 ecology course, genetics population ecology, typical

8 undergraduate courses for an ecology type area as

9 opposed to going on to pre-med.

10 Q. You obtained a master's in science from

11 LSU in wildlife ecology. Is that correct?

12 A. That's correct.

13 Q. What was the subject matter of your

14 master's thesis?

15 A. It was evaluating -- well, conducting a

16 radio telemetry study on coastal marsh raccoons and

17 evaluating the raccoon as a predator on the American

18 alligators.

19 Q. Did you pursue any subsequent postgraduate

20 study after your masters?

21 A. No.

22 Q. I note that you spent some years in

23 Botswana. Are you from that area originally?

24 A. No. When I graduated from LSU, I took a

25 two-year assignment at the department of state. The

1 Smithsonian had a volunteer program, part of the

2 overall Peace Corp program, but it was for

3 environmental work.

4 And then I stayed on after that tour of

5 duty was completed for about four more years on a

6 contract with the Botswana government as a biologist.

7 Q. Earlier in this proceeding, we received a

8 pleading from your counsel which in effect said that

9 your expected testimony would be concerning the

10 effect of nutrient enrichment on the Everglades'

11 highest order of vertebrates.

12 Is that something you will be testifying

13 about for the purposes of this proceeding?

14 A. That's correct.

15 Q. The further statement is that the

16 substance of that expected testimony will be

17 concerning the population dynamics and

18 interrelationships of higher order vertebrates?

19 A. That's right.

20 Q. And I guess the bottom line opinion here

21 is that nutrient enrichment in the Everglades

22 ecosystem will have an adverse impact on productivity

23 and will result in larger fluctuations in the

24 population of higher order vertebrates such as

25 alligators, Wading Birds and deer?

1 A. That's correct.

2 MR. HYDE: Kathy, would that be a fair

3 statement of what areas he will be testifying in?

4 MS. STARK: Yes, I this think that

5 accurately reflects the pleadings.

6 BY MR. HYDE:

7 Q. Mr. Fleming, what do you consider your

8 expertise to be?

9 A. An area I perused over the last 8 or 9

10 years is generally known as landscape ecology. A

11 special area of that is how spacial and temporal

12 characteristics of landscapes interact with

13 individuals that comprise the population of wildlife

14 species, in particular high order vertebrates like

15 Wading Birds and alligators.

16 Q. Would your emphasis be more on the higher

17 order vertebrates as opposed to, say, being on the

18 lower orders of like macrophytes or macrovertebrates?

19 A. Yes.

20 Q. Will you be testifying that nutrient

21 enrichment is causing or contributing to adverse

22 impact on the Everglades ecosystem?

23 MS. STARK: Objection to the form of the

24 question, but you may answer.

25 A. I'll be testifying on how changes in the

1 macrophyte communities and indirect effects on food

2 resources of high order vertebrates can be impacted.

3 Q. In terms of the changes in the macrophyte

4 community, are you in effect relying upon the

5 opinions of others, then --

6 A. Yes.

7 Q. Let me finish my question before you say

8 yes.

9 Are you in fact relying upon the opinions

10 of others that these changes in the macrophyte

11 communities are being caused by nutrient enrichment?

12 A. Yes.

13 Q. Could you explain to me what indirect

14 effects on higher order vertebrates you were speaking

15 about here?

16 A. Again, based on the initial testimony of

17 these other people, changes in water quality that

18 affect turbidity and dissolved oxygen levels as well

19 as changes in the way food resources are available

20 and how that can be affected by nutrient levels.

21 Q. What kind of turbidity problems are you

22 speaking of?

23 A. When you begin getting eutrophic or

24 hypertrophic conditions, you begin to get a change in

25 algae and things like that as well as decreasing

1 light penetration.

2 Q. When you speak of turbidity there, are you

3 speaking of turbidity in the same sense as the water

4 quality standards speak of turbidity in terms of how

5 one measures, I guess, the cloudiness of the water?

6 A. Yes.

7 MS. STARK: Objection to the form of the

8 question.

9 You can answer.

10 Q. Your answer was yes?

11 A. Yes.

12 Q. Dissolved oxygen, what impacts are you

13 speaking of there?

14 A. Basically when you see macrophytes like

15 cattails, when you have plant community, monotypic

16 communities that have high density that blocks

17 sunlight, sun penetrating into the water will reduce

18 the photosynthetic process.

19 Q. In that regard, are you again depending on

20 the opinion of others who believe that nutrient

21 enrichment has caused a transition to a monotypic

22 culture of cattails, for example?

23 A. Yes, as well as my own field experience --

24 not as a result of studies, but when I look at the

25 spacial distribution of cattails throughout the

1 system, and I see continuous stands in the northern

2 Everglades in the Water Conservation Area, and

3 nutrients in those areas, as well as working with a

4 wide range of hydrological conditions over which

5 those stands occur.

6 And then when I look, say, in the southern

7 Everglades, where we also have a wide range of

8 hydrological conditions and impact in water

9 management, that we don't have that spacial

10 distribution, continuous spacial distribution of

11 cattail stands.

12 There's a hypothesis on my part as a field

13 ecologist that that is not a typical distribution of

14 any plant species in the Everglades with the

15 continuous stands, and it makes me wonder what would

16 be the disturbance causing that.

17 And I work a lot with hydrological data,

18 because I focused how hydrology has impacted this,

19 but I have a hard time when I look through a lot of

20 my data files, trying to explain or look at anything

21 that would obviously correlate with the water

22 management spacial distribution of cattails in water

23 conservation.

24 Q. You mentioned hydroperiod. In your

25 opinion --

1 A. I have not mentioned "hydroperiod."

2 Q. Hydrology?

3 A. Hydrology.

4 Q. Can hydrologic conditions impact on the

5 vegetative community such that it promotes a

6 transition to a cattail monoculture?

7 A. You are asking me based on field

8 experience?

9 Q. Yes.

10 A. Yes.

11 Q. Do other factors such as fire and drought

12 also come into play in assessing the plant

13 communities of the Everglades ecosystem?

14 A. Sure.

15 Q. How would fire affect those systems?

16 A. Fire sets back, it opens up an area for

17 colonization by a species.

18 Q. Are there different types of fires that

19 occur in the Everglades ecosystem in terms of their

20 impact on that system?

21 A. Yes.

22 Q. Could you go into how those fires occur

23 and what the impacts are?

24 A. Well, on the broadest level, we have

25 natural burns and then they have managed burns.

1 Natural burns can be result of lightning, managed

2 burns would be prescribed burns.

3 Q. Deliberately set fires, you mean?

4 A. Yes.

5 Q. Are there differences in terms of the

6 severity of the fires?

7 A. Yes.

8 Q. How do the differences manifest themselves

9 in the ecosystem?

10 A. Primarily in a very severe fire, we will

11 lose accumulated peaks.

12 Q. By that, do you mean it burns down to a

13 lower elevation than the typical natural fire would?

14 A. Yes.

15 Q. Of what environmental consequence is that

16 leap or burn?

17 A. It increased the hydroperiod.

18 Q. And it also increased the phosphorus

19 concentration in the soil at the site?

20 A. I don't know.

21 Q. Can depression in DO, dissolved oxygen,

22 what you were referring to a few minutes ago, also be

23 characteristics of a dense monoculture of sawgrass?

24 A. Yes.

25 Q. You also mentioned the possible impacts of

1 nutrient enrichment on food resources. Can you be a

2 little more descriptive of that?

3 A. Yes, basically -- this is again relying on

4 the studies, not that I have done, but we have seen a

5 loss of utricularia periphyton subsystem in areas

6 where we begin to get eutrophic conditions, and those

7 areas have been replaced by -- eventually they go

8 through a succession, but this is where we have seen

9 extensive cattail stands developing in the

10 Everglades.

11 Q. Are you relying on the opinion of others

12 for the notion that nutrient enrichment has caused a

13 loss of the utricularia periphyton subsystem in those

14 areas?

15 MS. STARK: Objection to the form of the

16 question.

17 Q. You can go ahead and answer.

18 A. Yes, I am.

19 Q. Are you, likewise, relying upon the

20 opinion of others for the notion that depression in

21 dissolved oxygen concentration, characteristics of

22 dense monocultures of macrophytes, are being caused

23 by nutrient enrichment?

24 A. That is one cause of that; yes, I will be

25 relying on the work of others.

1 Q. What other causes are there of that

2 depressed dissolved oxygen?

3 A. You can have a cloudy day, and when

4 surface water flows are low, say, in the dry season

5 and very little light penetration, so you have a very

6 low photosynthetic rate going on, and that could

7 cause a low DO level.

8 Q. Does water depth have any impact on the

9 dissolved oxygen concentration of a body of water?

10 A. Yes.

11 Q. How does it?

12 A. You have higher -- the more oxyenated part

13 of the water column will be close to the surface.

14 Q. Does that mean, in effect, then, the

15 deeper you go, the lower the dissolved oxygen

16 concentrations will be?

17 A. Generally, but I wouldn't state that as an

18 absolute rule.

19 Q. Does vegetative shading have any impact

20 upon dissolved oxygen concentrations?

21 A. Again, based upon testimony of others.

22 Q. How does did impact the concentration?

23 A. It prevents as much light from

24 penetrating, striking the surface water and

25 penetrating into the water, which then again affects

1 the available light for photosynthesis.

2 Q. Are you familiar with the state water

3 quality standards for dissolved oxygen?

4 A. No, not really in terms of the numbers

5 that are in there.

6 Q. Do you know whether dissolved oxygen

7 conditions in the Everglades ecosystem

8 characteristically, but not always, fall below 5

9 milligrams per liter?

10 A. I don't know any of the actual

11 quantitative values.

12 Q. Do you know whether Everglades species

13 such as the fish and macroinvertebrates are adaptive

14 to low dissolved oxygen conditions?

15 A. Some are more adaptive than others.

16 Q. What would be some representative examples

17 of more adaptive species?

18 A. Mosquitofish.

19 Q. Are there any others that fall within that

20 general category?

21 A. Star Fish would another.

22 Q. What about benthic macroinvertebrates?

23 A. You have the larger ones -- Crayfish, they

24 can actually exist in very short hydroperiods.

25 Q. By "short hydroperiods," by low dissolved

1 oxygen?

2 A. No, short inundation periods.

3 Q. Well, my question, I think, originally

4 phrased was whether there were any species that were

5 adaptive to low dissolved oxygen conditions, and is

6 it your opinion that Crayfish are adaptive to low

7 dissolved oxygen conditions?

8 A. It is not that they are adaptive to it,

9 they can exist over a wider range of conditions than

10 more aquatic organisms.

11 Q. In other words, they could tolerate it

12 better?

13 A. Yes.

14 Q. Any other macroinvertebrate species that

15 can better tolerate low dissolved oxygen

16 concentrations in the Everglades ecosystem?

17 A. I'm sure there are. I mean, it is not my

18 area of specialty.

19 Q. How does this nutrient enrichment

20 adversely impact higher trophic vertebrates such as

21 -- we will start out with alligators?

22 A. For alligators, as well as for Wading

23 Birds, the ability of those populations to persist do

24 not fluctuate widely around a given mean number. It

25 is very dependent upon the spacial and heterogeneity

1 of the landscape.

2 So that any environmental change that

3 would reduce that heterogeneity affects the ability

4 of the population to disburse as well as to

5 recolonize following a disturbance, or even to

6 survive a disturbance such that their numbers can

7 fluctuate more widely than if they had adequate range

8 of habitat.

9 And when you begin replacing the sort of

10 natural mosaic of plants that typify the less

11 disturbed Everglades wetlands -- say you have a tree

12 island with sawgrass tails and big patches of

13 sawgrass separated by wet prairie patches as well as

14 open water, small patches of open water or sloughs,

15 and you begin to replace that with, say, cattails,

16 then you have begun to reduce the range of

17 heterogeneity in terms of the habitat of the plant

18 communities -- the structure, actually the structure

19 of that landscape.

20 Alligators are cold-blooded, and they need

21 to have in a typical activity range of theirs, a wide

22 range of spacial heterogeneity, and they utilize this

23 through thermoregulatory behavior, to on a cold day

24 find an open sunny spot to keep their core body

25 temperatures within optimum ranges, as well as on a

1 hot day to find a more shady spot.

2 That becomes particularly more important

3 when you go through the typical wet and dry season

4 fluctuations that we have in the Everglades, as well

5 as in the wet season when we begin to reach high

6 water temperatures.

7 Another important aspect of having a lot

8 of spacial heterogeneity in their habitat is in terms

9 of their ability to efficiently capture prey.

10 Q. It is a lot easier to catch prey in a pond

11 than in --

12 A. Or any more open area.

13 Q. It seems to me this opinion is really

14 based more on the effect and not the cause of a

15 cattail monoculture or any monoculture development.

16 Let me try to restate that.

17 Your opinion seems to be dependent on the

18 fact that a monoculture has developed as opposed to

19 the cause of that development. Would that be

20 correct?

21 A. It is the loss of that natural mosaic that

22 causes it, and being replaced by a less diverse plant

23 -- or plant community, such as a monotypic stand of

24 cattails, that would reduce the spacial heterogeneity

25 that I referred to.

1 Q. Would it be true if the monotypic stand

2 that emerged was, say, sawgrass as opposed to

3 cattails?

4 A. If they had the same characteristics of

5 the area, the undisrupted continuous nature of it,

6 although some sawgrass patches actually -- there's a

7 wide range of stem density in sawgrass patches, some

8 are quite open and others are quite dense. In the

9 densest sawgrass, I will equate that with what I'm

10 saying here.

11 Q. It is my understanding that the areas of

12 greatest biological productivity in the Everglades

13 ecosystem are the open water sloughs. Would that be

14 a fair characterization?

15 A. My only problem in answering your question

16 is there is a wide range of habitat in their annual

17 cycle, so that although some habitats may not have a

18 high standing biomass of a certain species, for many

19 months in a 12-month pattern, without that critical

20 habitat being available, they could not be

21 reproductively successful.

22 So although, yes, in the Everglades, we do

23 see animal biomass, generally highest in long

24 hydroperiod or -- well, I won't say slough, but long

25 hydroperiod wetlands, one should not deduce from that

1 that other type wetlands are not critically

2 interrelated in maintaining that production.

3 Q. You mentioned a few moments ago that the

4 loss of tree islands will likewise have an impact

5 upon the spacial and temporal heterogeneity of the

6 ecosystem.

7 How so?

8 A. For example, take White-Tailed Deer, tree

9 islands are very important for cover for White-Tailed

10 Deer, and what we basically have is grasslands matter

11 in the Everglades. There's a lot plant species that

12 are important, hardwood, tropical hardwood in the

13 tree islands that are utilized by deer.

14 They also, because of the topographic

15 relief in relation to the immediate surrounding

16 relative to the immediate surrounding marsh, provide

17 some flood refugia up to certain levels.

18 Q. Do you have any knowledge whether tree

19 islands in north Water Conservation Areas were

20 essentially drowned out by flooding in the early

21 '80s?

22 A. Walt Dineen felt that. I have heard Walt

23 talk. I have not actually focused on that, but I

24 know Walt felt that very strongly.

25 Q. He felt that, in effect, the tree islands

1 had been drowned by flooding in that Water

2 Conservation Area?

3 A. Yes.

4 Q. So then my question is, the cause of the

5 changes doesn't appear to be what is important,

6 rather that impact has occurred in terms of your

7 opinion?

8 MS. STARK: Objection to the form of the

9 question.

10 A. The causes are important because the

11 effects are important.

12 Q. In the first series of answers, I

13 understood you to be concentrating primarily on

14 alligators .

15 Could you be more specific on impacts

16 that would be occurring as a result of the spacial

17 and temporal changes on Wading Birds.

18 A. Wading Birds avoid feeding in wetlands

19 which are characterized by high stem density and high

20 plant height. And there are a number of reasons for

21 that, but visual feeding Wading Birds as opposed to

22 tactile feeding gills -- high, thick grassland is

23 just not an efficient foraging habitat for these

24 birds, as well as tactile, the sheer physical

25 resistance of trying to forage in that type of plant

1 structure.

2 Q. Again, would that be true for dense stands

3 of sawgrass as well as dense stands of cattails?

4 A. Yes.

5 Q. Are there any Wading Birds that like that

6 kind of habitat?

7 A. No. In the work we have done -- we have

8 had a froaging study that we have had going for nine

9 or 10 years now known as the Systematic

10 Reconnaissance Flight Program where we have mapped

11 the monthly dry season distribution of Wading Birds

12 throughout the Everglades.

13 This has been a cooperative effort: South

14 Florida Water Management District, the Park Service

15 and the Fish & Game Commission.

16 And the analysis of part of that data, the

17 northern Everglades data, looking at a number of

18 multivariate factors, present water condition and

19 vegetation type of thing, has shown that the birds

20 were avoiding that stem density.

21 I have not done that analysis on our data

22 because I was focusing on a landscape level, but I

23 have looked at the percentage of birds of all those

24 different species that we ever recorded or observed

25 feeding in these dense grass types, and it has only

1 been less than 10 percent and usually around two or

2 three percent.

3 Q. Do you have an opinion as to what levels

4 of density are necessary to effectively scare or

5 steer the Wading Birds away from those areas?

6 A. Not quantitatively, I don't have a

7 quantitative value in my head. That could be

8 measured quite easily.

9 Q. Would it generally be your opinion that

10 less dense stands of macrophytes would be more

11 favorable to Wading Bird usage whereas more dense

12 stands would be less favorable?

13 A. Yes, I think what you would see is if you

14 plotted utilization of Wading Birds against the stem

15 density and/or height, you would see that where the

16 stem density increased, you would be getting less and

17 less numbers of Wading Birds.

18 At some point, there's going to be a

19 threshold effect, though, where it just reaches the

20 point where the density has become so much that

21 there's a big dropoff, an exponential rate of

22 decrease in the number of birds that would use a

23 given wetland once it reaches a certain stem density.

24 Q. My earlier question was addressed to

25 Wading Birds. Are there any other bird species that

1 can favorably utilize these dense monotypic stands of

2 macrophytes?

3 A. It is not my area really. I have not

4 studied any other birds.

5 Q. So your opinion was really related to?

6 A. Colonial Wading Birds.

7 Q. Would you give me a list of the species

8 that would fall within that general category?

9 A. Yes.

10 Q. I prefer by common names, not the Latin

11 names.

12 A. Sure. The White Iris, Glossy Iris, Wood

13 Stork, Roseate Spoonbill, Great White Heron, Great

14 Blue Heron, Great Igret, Snowy Igret, Tricolor

15 Herons, Little Blue Herons -- I would have to see a

16 list.

17 Q. The third general category of vertebrates

18 you mentioned was Der.

19 How specifically have they been impacted

20 by this transition to dense monotypic stands of

21 macrophytes?

22 A. Deer have a high metabolic rate in

23 relation to the volume of food that they can consume

24 in any one feeding, so that to meet their maintenance

25 and energetic needs, as well as needs for growth and

1 reproduction, they have to be very selective feeders.

2 They are very selective in terms of the

3 plant species and even the parts of some plant that

4 they eat, and they will seek the more nutritional

5 parts of a plant, the nutritional species that have a

6 high digestibility coefficient.

7 Therefore, in order for deer to meet their

8 sort of daily metabolic needs, they require again a

9 lot of diversity in plant species in the Everglades

10 because it is not a system being oligotrophic that

11 has a wide range of plants, this is relative to other

12 parts.

13 Q. Do macrophytes such as sawgrass or

14 cattails play an important part of the White-Tailed

15 Deer's diet?

16 A. No.

17 Q. Do they play any role whatsoever in that

18 diet?

19 A. Well, sure, not sawgrass -- this is based

20 on talking to some game biologists -- deer have at

21 times stretched down to eat the tuberous root part of

22 the cattail, but it is not the preferred plant in the

23 diet.

24 Q. I think you intimated that they didn't eat

25 sawgrass at all, even the tubers?

1 A. There are sedges that they will, but other

2 than a breakdown further than that in terms of

3 sawgrass --

4 Q. I thought sedges would be something

5 different than sawgrass?

6 A. Yes.

7 Q. Will you be offering any opinions as to

8 impact on other higher order vertebrates than

9 alligators, Wading Birds or deer?

10 A. I could.

11 Q. Are you intending to?

12 A. Well, I mean, if I'm asked -- I don't know

13 what I will be asked, but we have other endangered

14 species that I have not studied myself directly, but

15 am familiar with the literature on those species in

16 the Everglades and which a general reduction in

17 spacial heterogeneity would affect just like Wading

18 Birds and alligators.

19 Q. What other species are you referring to

20 here?

21 A. The Snail Kite would be one species.

22 Q. Do you consider yourself to be an expert

23 on the Snail Kite?

24 A. No, I have just kept up in detail, though,

25 with the literature because that has been an issue.

1 Q. Any other species?

2 A. Cape Sable Sparrows is another endangered

3 species that needs open structures; the more

4 nonopening grass structures would affect it.

5 Q. Correct me if I'm wrong, but the sparrow

6 is confined largely to the southern portions of the

7 Everglades National Park?

8 A. Largely. There is a population that's to

9 the west side. There's one core population and some

10 satellite populations off of that. Do you know the

11 stair step area?

12 Q. Yes.

13 A. But largely a southern Everglades

14 distribution.

15 Q. So when we speak of possible impacts of

16 temporal or heterogeneity on the sparrow, we are not

17 referring to the so-called cattail phenomenon in the

18 northern conservation area?

19 A. No.

20 Q. What impacts are we speaking of there?

21 A. If the only water available to us to

22 restore the flow in the Taylor Slough system had

23 nutrient levels that would cause the changes we

24 discussed, the impacts, the grass that was there --

25 that's what I'm referring to -- could become a

1 problem.

2 Q. Assuming that nutrient enrichment did

3 cause changes in the ecosystem and those changes

4 manifested themselves in the habitat of the sparrow,

5 then there could well be these kinds of adverse

6 impacts on the community of that species?

7 A. Yes.

8 Q. How, to your knowledge, are Snail Kites

9 being adversely impacted by, I guess a loss of

10 spacial and temporal heterogeneity?

11 A. Again -- and this is the same with what I

12 explained in Wading Birds -- all animals, Snail Kites

13 or Wading Birds, particularly during the reproductive

14 phase of their annual cycles, are on a time and

15 energy budget -- they have so much time to search for

16 food, so much to catch it, to bring it back, to feed

17 their young as well as take care of their own

18 maintenance, so that anything that would increase

19 their search time in finding or in their ability to

20 more efficiently capture prey, reduces the time, the

21 amount of prey in a 24-hour period, say, that they

22 can consume or bring back to feed its young.

23 So that if you are going to a more dense

24 tall grass structure, that will affect Snail Kites'

25 ability -- which are feeding on Apple Snails -- to

1 more effectively forage and find snails in that type

2 of wetland.

3 There's another thing, though, that we are

4 seeing, another effect. Snail Kites will nest in

5 cattails as far as reproductivity, but cattails as a

6 nesting substrate is not as sturdy as a willowhead.

7 In the typical sort of thunderstorms,

8 tropical weather we have here, a lot of the nestings

9 get blown out, so they have documented that there's

10 been a lower nesting success rate when Snail Kites

11 are using cattails as a nesting structure.

12 Q. I recall some suggestions to the effect

13 that nutrient enrichment may well be increasing the

14 population of Apple Snails and thus the prey base for

15 the Snail Kites. Have you heard that?

16 A. No, but you have to be very careful. In

17 the final analysis, what is important is prey

18 availability and not abundance, and the availability

19 does not directly correlate with prey abundance.

20 So that you could be producing -- I'm not

21 saying you are, but you could be producing more

22 snails, but if they are being produced in a habitat

23 in which an animal can't effectively exploit, then

24 that's of no practical value or immediate or direct

25 value for daily ingestion.

1 MR. HYDE: Let's take a brief break here.

2 (Recess)

3 BY MR. HYDE: Why don't you mark this for

4 me, please, as Exhibit 2.

5 (Fleming Exhibit 2 was marked for

6 identification)

7 BY MR. HYDE:

8 Q. Mr. Fleming, would you identify what's

9 been labeled as Exhibit 2 for me.

10 A. Bibliography, not complete, but a

11 bibliography of what I consider the more important

12 publications that I used in support of my work or in

13 writing up my work.

14 Q. Are these documents upon which you would

15 be relying for the purposes of your testimony as

16 well?

17 A. Yes, and others.

18 Q. I know this is kind of a loaded question,

19 but in taking a deposition like this, one typically

20 likes to find out not only what the opinions are, but

21 also the factors upon which those opinions are based.

22 And this bibliography, Exhibit 2, is

23 already a quite substantial document of some 24 pages

24 of documents listed.

25 Do you intend to rely on each and every

1 one of these for the purposes of your testimony?

2 A. The papers I have written incorporate and

3 refer to a large number of those as well as -- it

4 depends on the question, it depends on the question.

5 Q. Should one look primarily then to the

6 papers that you have authored in terms of your

7 supporting facts?

8 A. As well as the bibliography to those

9 papers.

10 Q. Which papers of yours do you intend to

11 specifically rely upon?

12 A. There will be the three Wading Bird, the

13 three -- the first three papers I mentioned earlier;

14 two are in Ecologia and one in Environmental

15 Management on Wading Birds; then the alligator, the

16 deer, and the landscape ecology restoration.

17 But I will be relying on a great deal of

18 body of literature that is referenced in those in

19 Landscape Ecology on spacial characteristics of

20 landscapes and heterogeneity that I will be drawing

21 upon.

22 Q. Why don't we take a few moments to

23 identify those documents by title for the record,

24 please.

25 (Pause)

1 A. Here are the alligator and deer papers

2 that I have been referring to, and these are the

3 three Wading Bird papers. This is the landscape

4 perspective paper I've been referring to. Those have

5 been my own papers that I've been referring to. This

6 one I really haven't --

7 Q. Okay.

8 (Pause)

9 MR. HYDE: I would like to attach a copy

10 of these documents to the transcript and I won't need

11 to interrogate him.

12 How do you want to go about doing it? We

13 can attach these or make copies of these?

14 MS. STARK: Yes, I would rather have

15 copies made. If you want to refer to them now, we

16 will leave them in the room; if you don't think you

17 are going to, why don't I give the paralegal those

18 documents to copy?

19 MR. HYDE: Why don't we do that. There

20 might be a couple that I will want to, but the others

21 I am pretty well familiar with.

22 THE WITNESS: A lot of the things

23 referenced in here has a lot to do with heterogeneity

24 landscapes across that whole thing.

25 MS. STARK: Let's go off the record for 30

1 seconds, and I will be right back.

2 (Discussion off the record)

3 BY MR. HYDE: Let's go ahead and mark this

4 Exhibit 3.

5 (Fleming Exhibit 3 was marked for

6 identification)

7 BY MR. HYDE:

8 Q. Mr. Fleming, would you identify what's

9 been labeled Exhibit 3 for me, please.

10 A. It's a summary report for one year's

11 records of -- it appears to be one year's records of

12 reproductive success of Wading Birds.

13 Q. The a the top right-hand corner of the

14 first page is the handwritten word Walt Dineen.

15 Does that mean the author of the document?

16 A. I don't know. We have a whole lot of

17 these annual summaries that have been done, and I

18 probably pulled it out of a box in the library and

19 photocopied it for my own records.

20 Q. I did note on page 7, it indicated you,

21 guess, as being one of the people copied?

22 A. Let me see.

23 cc to me.

24 Q. Since you are on page 7, I would like to

25 call your attention to the third sentence in the

1 paragraph under the subheading Discussion, beginning

2 with the phrase "Nesting success of Wading Birds in

3 the interior wetlands again illustrated the

4 sensitivity of the population to water levels."

5 And then it goes on for the remainder of

6 the paragraph. If you could just take a moment and

7 read the remainder of that paragraph.

8 (Pause)

9 A. Okay.

10 Q. Do you agree with the observations that

11 are set forth in that Discussion paragraph on page 7

12 of Exhibit 3?

13 A. In part, I do.

14 Q. Is there any part that you disagree with?

15 A. As far as it goes, no. I don't think it

16 tells the whole story, but --

17 Q. Would you agree with the proposition that

18 hydrological cycles can very well impact upon the

19 Wading Bird population in the Everglades ecosystem?

20 A. Yes.

21 Q. Would you agree that man's management --

22 or probably more appropriately, mismanagement of

23 those hydrological cycles have had adverse impacts on

24 the Wading Birds populations?

25 A. Yes.

1 Q. How so?

2 A. In a number of ways. Do you want me to --

3 Q. Yes, could you articulate which ways that

4 you recall are reflective of impacts.

5 A. Landscape draining has reduced the aerial

6 extent of the wetlands. By doing that, it has also

7 reduced spacial heterogeneity of the remaining

8 wetland which has lost a great deal of short

9 hydroperiod marsh in the system, as well as decreased

10 dry season flows, a much more frequent drydown

11 interval in terms of major drydowns.

12 And the areas of overdrainage and other

13 areas, it has also affected the availability of prey.

14 And that's in terms of water management, in terms of

15 quality, quantity, flow distribution and timing.

16 Again, in terms of nutrient loadings, and

17 based on the testimony that other people have given

18 in the heterogeneity of the natural plants, also

19 reducing the heterogeneity of the remaining areas of

20 the Everglades that is not lost to development.

21 Q. For the purposes of my next question, and

22 probably for the remainder of this deposition, when I

23 refer to the Everglades Protection Area, or EPA by

24 its acronym, I am referring to the Park, several

25 Water Conservation Areas, including the Loxahatchee

1 Refuge, Water Conservation Areas 2-A, 2-B, 3-A and

2 3-B, okay?

3 Would you agree that at least in terms of

4 impacts on Colonial Waterbirds, that virtually the

5 entirety of the EPA has been impacted through man's

6 changes in the flow distribution and timing of water

7 delivery in those areas?

8 A. Yes.

9 Q. What portions of the EPA have been

10 impacted by this transition to dense macrophyte

11 communities that you believe are attributable to

12 nutrient enrichment?

13 A. Well, when you look at -- the map I'm

14 going by is the exhibit of Ron Jones, the northern --

15 it is in the northern end, 3 -- I can't remember the

16 exact boundaries, that map Ron Jones had.

17 Q. Does Dr. Jones's map reflect the

18 macrophyte community changes in Water Conservation

19 Area 2-A?

20 A. I believe it does.

21 Q. 2-B?

22 A. 2-B. And the north end of 3-A -- we refer

23 to them -- 3-A north and 3-A south, but north end of

24 3-A.

25 Q. And you are assuming those changes are due

1 to nutrient enrichment?

2 A. Based on the testimony of experts in that

3 area.

4 Q. Are you aware of other testimony or

5 studies which suggest that hydrology or hydroperiod

6 has had a role in the transition of those communities

7 to dense stands of macrophytes?

8 A. I am aware like in work that Wiley

9 Kitchens has done that hydrology is a variable.

10 Q. Are you aware of any studies that have

11 attempted to parse out the relative contributions of

12 nutrient enrichment versus the broad category, I

13 guess, of hydroperiod or hydrologic management on the

14 transition of those communities to dense stands of

15 macrophytes?

16 A. Again, I dwell on the work Wiley has done

17 as well as in terms of more direct nutrient impact

18 studies by Ron Jones.

19 Q. In your answers, you spoke to the loss of

20 short hydroperiod period marsh. What are they, and

21 secondly, where are they or were they?

22 A. The predrainage landscape, the short

23 hydroperiod wetlands were on the eastern edge of the

24 system adjacent to the Atlantic coastal ridge, and

25 were most extensive in forming the eastern portion of

1 the southern Everglades.

2 About 85 percent of that has either been

3 lost to development or is severely overdrained at the

4 moment. In the post-drainage landscape, you will

5 hear people refer to short hydroperiod wetlands.

6 Some of those can actually be long hydroperiod

7 wetlands in the pre-drainage landscape that are

8 presently overdrained.

9 So I generally refer, the specific

10 locality, I generally refer to the eastern peripheral

11 short hydroperiod wetlands which characterize the

12 pre-drainage landscape.

13 MR. HYDE: Let's mark this as No. 4.

14 (Fleming Exhibit 4 was marked for

15 identification)

16 BY MR. HYDE:

17 Q. Mr. Fleming, do you recognize Exhibit 4?

18 A. Yes.

19 Q. Are you the preparer of this document?

20 A. Yes.

21 Q. I would like to draw your attention to the

22 first page, the subheading Problem Statement.

23 I would like you to review that for a

24 moment and then tell me whether you continue to agree

25 or disagree with the statements contained in that

1 paragraph.

2 (Pause)

3 A. I have no disagreement with it.

4 Q. You continue to agree?

5 A. Yes.

6 MR. HYDE: Would you mark this, please.

7 (Fleming Exhibit 5 was marked for

8 identification)

9 BY MR. HYDE:

10 Q. Mr. Fleming, do you recognize what's been

11 labeled Exhibit No. 5?

12 A. Yes, I do.

13 Q. Can you do this document for me?

14 A. Well, the first two memorandums are just

15 requests from the technician employed by me for

16 hydrological data. The third memorandum is a listing

17 of different drain handling and subdrainage basins on

18 which we stratify and do some of our statistical

19 analysis as far as weighting the data.

20 Then it looks like the remaining other

21 documents are entitled Recommendations Concerning

22 Water Management.

23 I guess you could call this in-house

24 planning type reports.

25 And then there's a final document which is

1 a synopsis of the 1985 wet season Wading Bird

2 results. Again in-house, we would circulate these to

3 research staff.

4 And then there's a final document, another

5 in-house, something I probably just circulated to the

6 research staff for planning.

7 Q. In this document -- we will call it a

8 composite document -- there's some discussion about

9 how water levels have impacted upon the American

10 alligator, in particular upon their nesting.

11 How does water level or hydrology,

12 particularly as it is managed by man, have impact on

13 the nesting success of the alligator?

14 A. The reproductive performance of alligators

15 can involve their nesting rate as well as the number

16 of eggs they lay, the viability of those eggs and the

17 time they are laid, as well as whether they make it

18 successfully through their incubation period of the

19 wet season.

20 If you dry a marsh down extensively,

21 particularly in the late dry season, you can create a

22 lot of thermal stress on a particular nesting female,

23 as well as eliminate a lot of the aquatic prey that

24 that female needs to consume in order to build up

25 protein reserves necessary for egg formation.

1 So that later on in the wet season, they

2 won't have the protein reserves to form eggs and

3 therefore nest. And we have had a great deal of loss

4 of eggs during the incubation period due to nest

5 flooding and overdrainage by drowning an area out too

6 much as well as eliminating prey.

7 Thermically it is a hostile environment;

8 as well as too much ponding, again can just create

9 too deep of water depths, so you can't just keep them

10 in areas where they don't have a great deal of

11 topographic relief.

12 Q. Are there any such areas in the Everglades

13 ecosystem now where there's this deep ponding effect?

14 A. The southern end of the Water Conservation

15 Area.

16 Q. Are you saying, in effect, that they have

17 left those areas or merely that they don't favor the

18 using of those areas?

19 A. They utilize the edges -- are you talking

20 nesting females now?

21 Q. Well, let's talk about nesting first.

22 A. In terms of nesting females, they can

23 utilize the edges of the areas, but where the water

24 gets too deep, more than about 45 centimeters, then

25 that really is too deep for them to start nesting.

1 Q. What about in terms of their other use of

2 the water body such as for feeding?

3 A. The utilization will generally decrease

4 the further away from a shallow edge. It is just the

5 need for an alligator. An alligator can exploit or

6 go out in nighttime and feed in those areas, but

7 again they need to get back into an area where they

8 could bask or crawl out and rest.

9 Q. The reason I ask is I have been in those

10 areas, 2-A and 3-A, and I saw alligators all over the

11 place down there. But I guess you are saying that

12 they don't typically use those areas except for the

13 edge, perhaps, for nesting?

14 A. For nestings, there is an upper limit to

15 water depth. They simply cannot just keep

16 constructing that larger and larger to keep the eggs

17 a certain height above the water levels. So its

18 major impact is on the nesting habitat.

19 Q. This Same composite Exhibit No. 5 also

20 speaks to adverse impact on the hydrology on the

21 White-Tailed Deer population. How has the deer

22 population been so impacted as a result of hydrology?

23 A. In two ways, both in terms of

24 overdrainage, those areas -- the plant digestibility

25 or value of the plants is not as high as a more

1 naturally flooded marsh. It is dried out, high

2 cellulose content and low protein.

3 Whereas in marshs more naturally flooded,

4 you generally have a higher protein value and a lower

5 cellulose content, so the food quality is better.

6 Then in terms of too deep a flooding,

7 again, it depends on what we are talking about, but

8 there's an upper limit in which deer can tolerate in

9 terms of frequent use of an area.

10 Q. In other words, they can drown, too?

11 A. Yes.

12 Q. Do you know whether such circumstances

13 have ever occurred in any portions of the Everglades?

14 A. Yes. There were major die-offs related to

15 high water level events in the late wet season in the

16 Water Conservation Areas.

17 Q. Are you speaking individual years where it

18 might have occurred?

19 A. That was over when I got here, but it

20 occurred more than once.

21 Q. When did you get here?

22 A. In May 11 years ago, May of '83.

23 Q. This would have been in the late '70s,

24 early '80s?

25 A. Right.

1 Q. I would like you to turn your attention

2 now to page 5 -- maybe we should refer to the Bates

3 No., 0161387 in the bottom right-hand corner of the

4 page.

5 A. All right.

6 Q. First of all, let me establish this is

7 page 5 of a document entitled Recommendations

8 Concerning Water Management Practices of the

9 Everglades Basin and Related Programs.

10 Are you the author of this particular

11 document regarding these recommendations, Mr.

12 Fleming?

13 A. Yes.

14 Q. Now, turning your attention again to page

15 5, under the subheading of Summary, the first bullet

16 point there indicates: "Annual drying and inundation

17 patterns are key ecological features of the

18 Everglades system."

19 Do you agree with that statement?

20 A. Yes. I put more emphasis now -- yes, I

21 do, but I put more emphasis now on landscape approach

22 than I did.

23 Q. Well, do you agree that annual drying and

24 inundation patterns can certainly impact upon the

25 landscape approach of yours?

1 A. Yes.

2 Q. How would that occur?

3 A. Well, through landscape drainage, for

4 example, a ratio of short to long hydroperiod.

5 Q. Any other way this can be affected?

6 A. The temporal characteristics of the

7 landscape by seasonal water level fluctuations, and a

8 number of other spacial characteristics,

9 overdrainage, etc.

10 Q. Does the timing or the distribution of

11 water have any impact upon the vegetative community

12 of the Water Conservation Areas of the Park?

13 MS. STARK: Objection to the form of the

14 question.

15 A. Yes.

16 Q. How so?

17 A. All plants are adaptive to certain

18 inundation, that's one variable they are adapted to

19 in terms of whether they dominate. If you begin to

20 change the distribution in timing of flow, you are

21 affecting the hydrologic characteristics of that

22 site.

23 Q. How can that manifest itself in terms of

24 real world changes in the vegetative community?

25 A. You can go from one plant to another, a

1 shift.

2 Q. Can you through hydrologic conditions

3 create, or hydrologic changes create conditions that,

4 in effect, favor one plant community over another?

5 A. Sure.

6 Q. Do you know whether deeper water

7 conditions favor cattail over sawgrass, or

8 vice-versa?

9 A. I wouldn't want to get it down to just a

10 completely univariate relationship.

11 Q. Is there a tendency that you could

12 attribute to cattails versus sawgrass in that regard?

13 A. I wouldn't want to, because what's going

14 on in my mind is I can think of a number of other

15 variables, the combination of wind drying or how dry

16 in a burn, and how long after a dry event or a

17 reflooding event -- there are a number of factors

18 besides water depth that come into it, would

19 eventually dominate the site.

20 Q. Recognizing there may be many factors that

21 affect the vegetative community of the site, can you

22 still agree with the proposition that deeper water

23 conditions fend to favor cattails as opposed to

24 sawgrass?

25 A. Again, I will take it on a situation. I

1 can think of areas of the Everglades where that is

2 not so and I can think of areas where it is so.

3 Q. In the second subheading under this

4 Summary, page 5 of this document, you state:

5 "Historical drying and inundation patterns are

6 unknown."

7 Could you explain in more detail what you

8 meant by that statement?

9 A. That the empirical database going back

10 predating this entry and up through the first third

11 or half of this century anyway, are nonexistent or

12 very poor.

13 Q. Are you saying, in effect, you really

14 don't know too much about what those patterns were in

15 the earlier part of the century?

16 A. From empirical data. Now, we have begun

17 to explore through system simulation modeling, actual

18 systems simulation modelings what those patterns may

19 have been like -- are you familiar with Fennema,

20 F E N N E M A -- as far as our knowledge goes through

21 simulation context of simulation models.

22 Q. Don't we have a pretty good handle on what

23 generally were the patterns in the hydrological cycle

24 in the Everglades even as long as ago the early part

25 of the century?

1 A. Based on empirical evidence?

2 Q. Based on historical accounts? Let me

3 phrase it this way. Haven't we known, for example,

4 that the summertime has tended to be the wetter

5 season?

6 A. On, I'm sorry, on a very gross level, yes,

7 on a macroscale level regarding the season.

8 Q. What are you looking for then specifically

9 when you make your observation that historical drying

10 and inundation patterns are unknown for this longer

11 ago period?

12 A. We want to look at flow volume and the

13 timing of those volumes and their distribution in

14 terms of range of water depths and the duration of

15 those water depths, and you want quantitative values

16 for that, that's what I mean by that.

17 Q. The third statement here reads: "Expected

18 historical drying patterns were probably progressive

19 at a gross scale of resolution, from north to south

20 throughout the entire basin as the dry season

21 progressed."

22 What do you mean by that statement?

23 A. "Expected" means since we don't know from

24 empirical data, but generally you don't have as much

25 pooling of water in the northern water sheds as you

1 do with the downstream portions, you have less

2 pooling in the upstream versus downstream portions of

3 a watershed.

4 Q. I guess that would be another way of

5 saying water flows downhill?

6 A. Yes.

7 Q. The fourth statement reads: "Exceptions

8 to this overall progressive drying pattern may have

9 occurred due to local abberations of topography

10 occurring within the basin."

11 What are you referring to there?

12 A. That it is not a flat surface, that you do

13 have this topographic variability that can cause some

14 areas to pool a little lower and others less. We

15 have ridges that extend into the Everglades.

16 Q. Where might some of these ridges be

17 generally located?

18 A. Two prominent ridges, one is the extension

19 of the Atlantic coastal ridge out in the Everglades

20 National Park in the southern Everglades, and to the

21 west of Shark River Slough in the southern Everglades

22 is another prominent ridge known as Rattlesnake

23 Ridge.

24 Q. Does Rattlesnake Ridge, in effect,

25 separate Taylor from the Shark River Slough?

1 A. No, Taylor Slough is to the east of Shark

2 River Slough, and then you have Shark Slough, and

3 then you actually have another slough system called

4 East Slough -- it was named by Big Cypress people

5 apparently. It is on the western side, but called

6 East Slough and it separates East Slough from Shark

7 Slough.

8 Q. Is there anything, any topographic feature

9 that separates the Taylor from the Shark River

10 Slough?

11 A. There is a Grossman's Ridge which

12 basically is a divide between those two systems.

13 Q. The next subheading reads: "Present annual

14 drying and inundation patterns are unpredictable and

15 occur as a result of present water management

16 practices."

17 What did you mean by that statement?

18 A. Basically that reversal in the drying

19 pattern, a lot of times can be created by the way

20 water is funneled to the east for water supply

21 purposes as well as wet season water levels can be

22 unpredictable. We could have -- we had sudden

23 discharges or spikes and discharges during the late

24 wet season from the conservation areas.

25 Q. When you say that the water is delivered

1 to the east, you mean for consumptive use purposes

2 that the people that live there?

3 A. Yes, or funneled out for flood protection.

4 Q. Do you know how much water on average is,

5 in effect, lost to tide from the Water Conservation

6 Areas to the east?

7 A. How much is discharged through the canal?

8 Q. For example, through the canals, St. Lucie

9 Canal or New River Canal?

10 A. I don't know the quantitative numbers on

11 that.

12 Q. The sixth point here reads: "Present

13 annual drying and inundation patterns have been

14 disruptive to ecological processes and have exceeded

15 biological tolerances of faunal and floral

16 communities characteristics of the ecosystem."

17 What do you mean by this statement here?

18 A. A lot of what we covered. You can change

19 the hydrologic characteristics of a site that a

20 particular plant community is in the system. With

21 rapid drying, or like we have talked about, too much

22 water being discharged in the wet season, you can

23 flood alligator nests; or reversal in the dry season

24 can cause Wading Birds to abandon nesting colonies,

25 those types of things.

1 Q. Create conditions that favor one plant

2 community over another plant community?

3 A. Theoretically -- I mean, yes,

4 theoretically. You have a lot of variables you can't

5 control.

6 Q. You referred here to the "biological

7 tolerances of faunal and floral communities

8 characteristics by the ecosystem."

9 Can you give me a specific example of an

10 exceedent of a biological tolerance of a faunal

11 community?

12 A. Sure. If you create long hydroperiods,

13 too deep of water depth, you can cause a shift in the

14 species composition of the marsh fish community. You

15 can eliminate the degree of utilization of that area

16 by alligators, Wading Birds, deer, and you can make

17 it more typical of shorter or long hydroperiods

18 wetlands and that will shift plants and animals.

19 Q. Would you give me a specific example of an

20 exceedent of the biological tolerance of a floral

21 community?

22 A. Tree islands.

23 Q. In other words, if you flood a tree

24 island, you might call -- well, cause upland

25 vegetation to disappear?

1 A. Right.

2 Q. Do you know whether, or the extent to

3 which that has in fact occurred in the Water

4 Conservation Areas for the Park?

5 A. In terms of flooding again, this is

6 nothing I have studied in the conservation areas, but

7 I know Walt Dineen was concerned with what happened

8 to tree islands.

9 And Conservation Area 3, the south end has

10 a number of tree islands in it that have shifted or

11 shifted over the years, less and less hardwood

12 species, more and more well tolerant species like

13 willows.

14 Q. In other words, a species of plant that

15 could tolerate perhaps wetter conditions but still be

16 fairly characteristic of dryer conditions as well?

17 In other words, it didn't have to have dry conditions

18 all the time?

19 A. Right.

20 Q. The, it reads: "Present drying and

21 inundation patterns may operate as limiting factors

22 on populations of Colonial Wading Birds, the American

23 alligator, and White-Tailed Deer."

24 And there are three separate subheadings

25 underneath that which discuss specifically Wading

1 Birds, American alligators, and White-Tail Deer.

2 I think I have a pretty good understanding

3 of what you mean by that, those observations in the

4 succeeding three paragraphs, but do you continue to

5 subscribe to these views?

6 A. I added on considerably since this was

7 written and expanded it more into a broader

8 landscape, but, yes, there's a lot more than -- these

9 are just simple statements.

10 Q. What do you mean by the phrase "limiting

11 factor"?

12 A. There are a number of environmental

13 variables that can determine population levels or

14 whether an area in the landscape is occupied by an

15 animal, and generally one or more characteristics may

16 have a larger influence on what determines the

17 numbers or occupancy rate of an area, and other

18 environmental characteristics of an area, those are

19 referred to as limiting factors.

20 MR. HYDE: Mark this, please.

21 (Fleming Exhibit 6 was marked for

22 identification)

23 BY MR. HYDE:

24 Q. Mr. Fleming, do you recognize this

25 document?

1 A. Yes.

2 Q. Can you describe it for me?

3 A. It's a draft of an evaluation that I and

4 other staff members did of what we call the Shark

5 Slough, now referred to as modified water delivery to

6 Everglades National Park.

7 This actual docuemnt, if I am correct, was

8 an initial evaluation, and then they discovered

9 errors in the hydrological data they were provided by

10 the corp, if I'm correct.

11 I can't remember the date, but the final

12 evaluation we did is actually a technical report --

13 it is a technical report, final evaluation. This is

14 like a preliminary one, and if I'm not mistaken, I

15 don't think this is what we used because I believe we

16 had to do another rerun on the ecological date.

17 Q. Are you one of the authors on this

18 document?

19 A. Yes.

20 Q. I would like to call your attention to

21 Bates No. 0150318.

22 A. Yes.

23 Q. Would you read the first full paragraph

24 under the heading Summary.

25 A. Yes, I have read it.

1 Q. Now that you have reviewed that paragraph,

2 do you continue or do you agree with the observations

3 set forth in it?

4 A. Yes.

5 Q. Is there anything you would modify to

6 those observations?

7 A. The wording.

8 Q. For my next series of questions, I am

9 going to be referring to -- let me just identify the

10 document as best I can, a document dated June 1992,

11 entitled:

12 Central and Southern Florida Project for

13 Flood Control And Other Purposes. Part 1,

14 Agricultural and Conservation Areas. Supplement 54.

15 General Design Memorandum and Environmental Impact

16 Statement. Modified Water Deliveries to Everglades

17 National Park, Florida, beginning with Bates No.

18 0945736, inclusive.

19 I would like you to, Mr. Fleming, refer to

20 several paragraphs in the general design memorandum,

21 beginning at page 15, at the bottom of the page,

22 numbered paragraph 21 relating to Birds, and this is

23 Bates page No. 0945788, and then on the next page,

24 paragraph 22, Fisheries, and paragraph 23,

25 Alligators, and then paragraph 25, the following

1 page, relating to fire.

2 Just take a moment, we can go off the

3 record while you are taking a look at that.

4 (Discussion off the record)

5 BY MR. HYDE:

6 Q. Mr. Fleming, have you had an opportunity

7 to identify to review the paragraphs I have

8 identified for you?

9 A. Yes.

10 Q. Let me ask you, do you agree with those

11 paragraphs and the observations contained in them?

12 A. In some places I do and some places I

13 don't.

14 Q. Can you specify for me your areas of

15 disagreement and refer to the specific paragraphs?

16 A. In paragraph 21, Birds, I would just have

17 a different emphasis on some of the factors.

18 Q. Then you don't necessarily disagree, you

19 would just put a different emphasis on them?

20 A. I would put a different emphasis on that

21 paragraph.

22 On Fisheries, 22, that's work done by

23 another Park biologist, and I am familiar with his

24 work, the results, and that appears to be a correct

25 sort of summary of his findings.

1 Alligators, there's a statement -- I'm not

2 really clear why they have that in there. I think

3 they are trying to get what I was saying; when you

4 have late, dry -- when you have major drydowns in the

5 late dry season, you can affect the amount of prey,

6 and this seems to be concentration more on alligators

7 or something.

8 Q. Could you read the one you are having

9 trouble wit?

10 A. "Moderate, progressive reduction in

11 surface water during dry season, culminating in

12 lowest levels in late May, coincides with increasing

13 densities of adults in anticipation of mating."

14 Q. What is your disagreement with that?

15 A. "-- with increasing density of adults in

16 anticipation of mating," I mean, there's no evidence

17 to support that statement. I think they were trying

18 to paraphrase some results of my studies.

19 And what I'm trying to say was that's at

20 the critical time in which adult females need to be

21 able to eat a substantial amount of protein in order

22 to develop eggs later on in the nesting cycle,

23 nothing really to do with adults in anticipation -- I

24 don't know where that came from. I don't know where

25 it came from.

1 Q. Okay.

2 Is there anything else?

3 A. No, in 25, I think that's a fair

4 reporting.

5 Q. Okay.

6 This sounds like a good breaking point.

7 Why don't we take a break for about an hour.

8 MS. STARK: Okay, and we will come back at

9 1:00.

10 (Luncheon recess)

11 AFTERNOON SESSION

12 1 p.m.

13 MR. HYDE: Mark this as 7.

14 (Fleming Exhibit 7 was marked for

15 identification)

16 MR. HYDE: Just for the purposes of the

17 record, we have added an Exhibit 7 which is an

18 excerpt from the document I described at length just

19 before our break, the cover page of the document

20 entitled Modified Water Deliveries to Everglades

21 National Park, Florida -- the cover sheet plus pages

22 15, 16 and 17.

23 What I will do with this document, since I

24 reviewed it during the break, is just have Mr.

25 Fleming identify it, and then ask him some questions,

1 and I think if you give it back to me -- if you need

2 it, just ask me for it and I will give it back to

3 you.

4 MS. STARK: Here, you have another copy

5 here.

6 Do you want him to work off this one?

7 MR. HYDE: Yes.

8 Mark this, please.

9 (Fleming Exhibit 8 was marked for

10 identification)

11 BY MR. HYDE:

12 Q. Mr. Fleming, would you identify what we

13 have labeled Exhibit 8 -- it is not before you, but I

14 believe it is the same document?

15 A. The manuscript titled: Differing

16 Viewpoints on Restoration Approaches for the

17 Everglades Ecosystem: A Critique of Walters -- a

18 paper put out by Walters, et al -- on that subject.

19 It is in prep, it has not yet been submitted. This

20 is a first draft.

21 Q. Were you one of the authors of this

22 document?

23 A. Yes.

24 Q. I would like to take you through a few of

25 the observations in this document just to see if you

1 -- well, let me just ask you a simple question, this

2 might be the simpler way.

3 There are a series of what I would call

4 findings or observations which relate to ecological

5 conditions in the Everglades, particularly as to the

6 impact or impacts on Wading Birds in particular, but

7 also on other upper level carnivores.

8 Would you basically stand by all of the

9 assertions that have been made in this paper?

10 MS. STARK: I will object to the form of

11 the question only in that it is very broad.

12 MR. HYDE: It is intentionally broad,

13 instead of going through line by line or page by

14 page.

15 BY MR. HYDE:

16 Q. Let me take you up through the specific

17 pages.

18 Please turn to page 15.

19 Would you read the paragraph that

20 commences at the bottom of the page with the words

21 "The Wading Bird decline," through the end of that

22 paragraph and into the next full paragraph on the

23 second page, it goes about halfway down.

24 (Pause)

25 A. All right, I have read it.

1 Q. Do you continue to agree with the

2 observations or findings set forth in that paragraph?

3 A. Yes.

4 Q. Actually paragraphs, plural?

5 A. Yes.

6 Q. At the bottom of page 16, the very last

7 line begins: "The severe decline, (90 percent) in the

8 number of nesting Wading Birds --" and then there's

9 the word "refs" in parenthesis.

10 I assume that means "references"?

11 A. References.

12 Q. " -- however, more closely approximates

13 the disproportionate reduction, (58 percent) in short

14 hydroperiod, freshwater wetlands that has occurred

15 concurrent with this decline (Fleming, et al in

16 press)."

17 Do you continue to subscribe to that

18 observation?

19 A. Yes. The point of that statement is that

20 there's been a disproportionate reduction in the

21 critical habitat, and there's also been a

22 disproportionate reduction in the birds that have

23 utilized that habitat.

24 Q. When you use the phrase "references," does

25 that mean that there's numerous references for that

1 proposition?

2 A. Yes. I haven't filled them in, but this

3 is a draft, so I will go back and insert the

4 references when I'm through writing the first draft.

5 Q. And when you are referring to "Fleming, et

6 al in press," is that a specific study?

7 A. You have those papers.

8 Q. Okay.

9 A. The Ecologia paper that that would be

10 referring to, the Wading Bird paper --

11 Q. Okay.

12 -- maybe had you could just take a look at

13 the pile of documents and tell me which one it is,

14 because I can't figure out from the documents which

15 one it is from the Ecologia magazine.

16 A. I would reference it now. This was an

17 original one long manuscript which I resubmitted into

18 two, so it is both of these.

19 Q. Could you read the total?

20 A. Colonial Wading Bird Distribution and

21 Abundance in the Pre- and Post-drainage landscapes of

22 the Everglades, and Colonial Wading Bird Nesting in

23 the Pre - and Post-drainage Landscapes of the

24 Everglades."

25 Q. Please turn now to page 26. The first

1 full paragraph reads: "Lastly, we find that, even

2 should one accept the recommendations for increased

3 flow volumes to the estuaries, that historical

4 evidence indicates this would not bring about the

5 recovery of the Wading Bird population.

6 Moreover, this policy had disastrous

7 effects on alligators and stuff."

8 I recognize this is an early draft, but

9 how did this "policy" have disastrous effects on

10 alligators?

11 A. No, what we are saying here is once you

12 accept the recommendation to the increase flow

13 problem to the estuaries, that historical evidence

14 indicates this would not bring about the recovery of

15 the Wading Bird population."

16 Q. Right, I understand that, but the next

17 sentence reads: "Moreover, this policy had disastrous

18 effects on alligators," and I am trying to understand

19 what you mean.

20 A. Because their policy was to increase flow

21 volume to the S-12 structures only and not actually

22 try and reinstitute flow across the whole flow

23 section of Tamiami Trail.

24 When you just use the S-12 gate only and

25 when we have high rainfall, you have to put

1 tremendous volumes of water through the 12s. In the

2 late wet season when we have high levels, natural

3 high levels of rainfall and we frequently go above

4 the regulatory stage in the Water Conservation Areas,

5 to have to release all that water through the S-12

6 creates a real rapid rise in water levels downstream

7 that easily floods alligator nests out of the S-12.

8 Q. Would it be better to, in effect, have a

9 broader sheet flow that would meter the water into

10 the parts of the Park?

11 A. If you spread that volume out along the

12 whole trail, then you would not have that spiked

13 discharge, or as much of a spike.

14 Q. Now, I would like you to tell me what you

15 mean by "and stuff." Are there other impacts that we

16 don't see there?

17 A. When you create rapid water, levels rise,

18 high water depth.

19 Q. Your other studies have indicated, or at

20 least some of these papers have indicated that the

21 White-Tailed Deer are primary food source for the

22 endangered Florida Panther?

23 A. Correct.

24 Q. Are panthers utilizing this portion of the

25 ecosystem, that is, the Park itself?

1 A. They did. We no longer have a concerned

2 panther population left in the Park.

3 (Fleming Exhibit 9 was marked for

4 identification)

5 BY MR. HYDE:

6 Q. Would you please identify what's been

7 labeled Exhibit 9.

8 A. This is a manuscript titled: The Need for

9 a Landscape Perspective in Everglades Restoration

10 Efforts.

11 Q. And are you one of the authors of this

12 document?

13 A. Yes.

14 Q. Has this document been published yet or is

15 it --

16 A. It is in the process.

17 Q. Where is it in the process of being

18 reviewed?

19 A. It has been accepted by this Dr. Westra,

20 but it is a compilation of papers presented at a

21 symposium, so the title of what they are going to

22 eventually call it, I don't know. I could find out,

23 but I don't know at this stage. It will be one of a

24 number of papers presented at a symposium.

25 Q. Let me turn your attention to the abstract

1 of this paper.

2 A. All right.

3 Q. We discussed at length spacial extent and

4 spacial heterogeneity, and in the last full sentence

5 of the abstract, you said: Landscape connectivity and

6 hydrologic periodicity are also important to restore

7 and preserve native animal assemblages, particularly

8 for top level carnivores included within the trophic

9 structure of the system."

10 First of all, what do you mean by

11 "landscape connectivity"?

12 A. When you look at the Everglades and you

13 see how levee systems and canals have subdivided the

14 area, depending on what trophic level you are talking

15 about, for example, 3-A between 3-B, the levees can

16 represent a real barrier to disbursal or immigration

17 or recolonization between aquatic organisms between

18 those two impounded areas.

19 The same effect came in the Trail, cutting

20 across the Everglades, restricting the amount of

21 disbursal and emigration back and forth, alligators.

22 Q. How does one restore landscape connectiviy

23 in this context at least?

24 A. In this context, you would either

25 completely deconstruct those levees or you would

1 establish breakages. A lot of that would have to be

2 evaluated to see how much you would need to go in the

3 way of deconstruction to achieve a certain effect.

4 Q. By deconstruction, do you mean things such

5 as placing, say, culverts or additional passageways

6 through the dike areas?

7 A. Yes.

8 Q. Would it be similar to the things that

9 have been done to the Florida panthers -- I'm trying

10 to think what they call it -- underpassages in

11 Alligator Alley, things like that?

12 A. Exactly.

13 Q. And when you are referring in the sentence

14 to "hydrologic periodicity," what do you mean there?

15 A. Frequency of drydown intervals. And by

16 "drydowns," I mean major drying out of the central

17 sloughs of the systems, not landscapes that are on

18 the edges that are of higher relative elevations, but

19 a major drydown is pretty much across the wetlands.

20 Q. Do you want to do that, promote that?

21 A. No, you do not want to promote frequent

22 drydowns in the interior wetlands.

23 Q. But you do want to promote, I guess, the

24 restoration of the natural hydrologic cycle in the

25 Everglades?

1 A. Much more persistent dry season flows so

2 you had a much longer time period of years between

3 major drydown events.

4 Q. By "more persistent," you mean there was

5 nor water in the system even during the dry time of

6 the year which is roughly the winter months?

7 A. Correct.

8 MR. HYDE: Mark this, please.

9 (Fleming Exhibit 10 was marked for

10 identification)

11 BY MR. HYDE:

12 Q. Would you identify what's been labeled

13 Exhibit 10, please?

14 A. A manuscript entitled: Colonial Wading

15 Bird Distributions and Abundance in the Pre- and

16 Post-drainage Landscapes of the Everglades. And it

17 has been submitted and accepted for publication in

18 the journal Ecologia.

19 Q. Does that mean this has been a peer review

20 document?

21 A. Yes.

22 Q. Do you get back the results of any of the

23 peer review comments on it?

24 A. Yes, that's what I mean when it has been

25 accepted, I have been notified that they have

1 accepted it for publication.

2 Q. I don't think I have any questions

3 concerning this document because it is fairly

4 straightforward to me, but I did have a couple of

5 questions about terms.

6 The middle of page 5, you make a

7 statement: "Declines in Wading Bird populations have

8 occurred in all feeding guilds."

9 I'm not familiar with that use of the

10 term. Can you explain what it means for me?

11 A. In this specific context, it is birds that

12 feed in a similar manner, and to give an example,

13 there are visual feeders who use their sight to find

14 prey; there are tactile feeders who basically don't

15 use sight, but they lower their bills into the water

16 and rely on physically bumping up against the prey.

17 Q. Would an example of the latter category be

18 Wood Stork, Spoonbills?

19 A. Yes.

20 MR. HYDE: Mark this, please.

21 (Fleming Exhibit 11 was marked for

22 identification)

23 BY MR. HYDE:

24 Q. Can you identify what's been labeled

25 Exhibit 11 for me?

1 A. A manuscript entitled: Colonial Wading

2 Bird Nesting in the Pre- and Post-drainage landscapes

3 of the Everglades, and it is a companion paper to

4 Exhibit No. 10, and also has been accepted to appear

5 in the journal Ecologia.

6 Q. What is the difference between the two

7 papers?

8 A. The one paper dealing generally with the

9 distribution in abundance foraging Wading Birds, that

10 includes nesting and nonnesting. The second paper

11 then takes the results of the first, and focuses them

12 more on the subpopulation of nesting birds.

13 MR. HYDE: Mark this.

14 (Exhibit 12 was marked for identification)

15 BY MR. HYDE:

16 Q. Would you please identify what's been

17 labeled as Exhibit No. 12.

18 A. There is a manuscript entitled: The

19 Importance of Landscape Heterogeneity to Wood Storks

20 in the Florida Everglades.

21 Q. Are you one of the primary authors of this

22 document?

23 A. Yes.

24 Q. How did you happen to end up with an

25 associate from Germany and Oak Ridge, Tennessee?

1 A. Oak Ridge, Tennessee, one of the

2 scientists and have I a cooperative agreement, and he

3 brought in a scientist from an equivalent type

4 national lab in Germany. He happened to be working

5 on the same type of modeling approach that he was

6 doing independently here at the same time.

7 Q. I note from the cover letter that this

8 manuscript was accepted in October of 1993. Has it

9 yet been published?

10 A. It is going to be -- this is a big journal

11 and it could take anywhere up to a year to actually

12 come out in the journal. If you look at the cover

13 page, they are saying in about 12 to 14 months' time.

14 (Fleming Exhibit 13 was marked for

15 identification)

16 BY MR. HYDE:

17 Q. Would you please identify Exhibit 13 for

18 me, please.

19 A. A manuscript entitled: American Alligator

20 Nest Distribution, Nest Abbundance, and Reproductive

21 Performance in Relation to Landscape Characteristics

22 of the Southern Everglades.

23 Q. Mr. Fleming, are you the sole author of

24 this document?

25 A. Yes.

1 Q. I just wanted to identify that one.

2 (Mark this.

3 (Fleming Exhibit 14 was marked for

4 identification)

5 BY MR. HYDE:

6 Q. Would you please identify what's been

7 labeled Exhibit No. 14, please.

8 A. Another manuscript entitled: White-Tailed

9 Deer Distributions and Abundance in the Everglades.

10 Q. In the abstract portion of this paper on

11 page 3, you state: "Comparison of deer heard

12 population estimates from this study with those of a

13 previous study conducted in the 1950s suggest that a

14 major reduction in deer numbers within the northern

15 Everglades has occurred.

16 Environmental factors believed related to

17 this decline, including wetland drainage and

18 impoundment associated with intensive regional water

19 management practices initiated in the 1960s, are

20 discussed."

21 First of all, when you refer to the

22 "northern Everglades," what geographic areas does

23 that phrase encompass?

24 A. Water Conservation Areas.

25 Q. You are excluding from that the Park

1 itself?

2 A. Yes.

3 Q. But that would include Water Conservation

4 Areas 1, 2 and 3?

5 A. Yes.

6 Q. What "intensive, regional water management

7 practices initiated in the 1960s" are being referred

8 to here?

9 A. The development of the water conservation

10 and impoundments.

11 Q. I think I am close to finishing here, but

12 I want to ask you a few broad questions about areas

13 of your testimony just to make sure you are