1 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. 2 1 APPEARANCES 2 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. 8 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 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 INDEX 2 Witness Direct D. MARTIN FLEMING 3 By Mr. Hyde: 5 4 EXHIBITS 5 NUMBER DESCRIPTION PAGE 6 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 13 14 5 Memoranda - in-house planning 48 reports 15 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 24 25 4 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 6 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 12 14 A document entitled: 82 13 White-Tailed Deer Distribution and Abundance in the Everglades 14 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 19 20 21 22 23 24 25 5 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? 6 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? 7 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 8 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 9 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 10 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 11 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 12 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 13 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 14 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 15 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? 16 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 17 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 18 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 19 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 -- 20 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. 21 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 22 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. 23 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 24 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 25 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 26 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 27 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. 28 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 29 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 30 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 31 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 32 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 33 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 34 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? 35 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. 36 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 37 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 38 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. 39 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 40 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) 41 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 42 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 43 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. 44 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 45 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 46 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 47 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 48 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 49 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. 50 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. 51 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 52 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. 53 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? 54 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 55 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 56 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? 57 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 58 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? 59 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 60 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. 61 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? 62 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 63 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? 64 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. 65 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 66 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. 67 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. 68 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, 69 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 70 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. 71 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 72 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 73 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 74 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? 75 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 76 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 77 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? 78 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 79 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? 80 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? 81 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. 82 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 83 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 not going 14 to be doing it. 15 A. Okay. 16 Q. Will you be offering any testimony 17 regarding the proposed stormwater treatment areas 18 that are set forth in the Everglades SWIM Plan? 19 A. No. 20 Q. Will you be offering any testimony 21 regarding phosphorus settling rates? 22 A. No. 23 Q. Or uptakes? 24 A. No. 25 Q. Will you be offering any testimony as to 84 1 the appropriateness of the phosphorus limits set for 2 the Park? 3 A. No. 4 Q. For the Loxahatchee Refuge? 5 A. No. 6 Q. Or generally for the Water Conservation 7 Areas? 8 A. No. 9 Q. During the course of our questioning 10 today, have we covered the areas in which you intend 11 to offer opinions? 12 A. Yes. I don't know how much you might get 13 into Snail Kites and sparrows, but I think we touched 14 on that. 15 Q. Let's go back for a moment just to the 16 Snail Kites. What would you intend to be offering 17 regarding the Snail Kites? 18 A. It is the same argument that I have been 19 making all the way across, and that's the changes 20 that we would see through the monotypic stands reduce 21 the available foraging habitat, the habitat that 22 birds are able to efficiently forage in, and that has 23 consequences on their time, energy, reproduction, but 24 it that spacial heterogeneity is lost. 25 Q. Are any of those opinions in that regard 85 1 based upon a specific study at the Everglades -- let 2 me start over. 3 Is your opinion regarding impacts on the 4 Snail Kites predicated on any specific study of the 5 Snail Kite population? 6 A. It is predicated on two lines of research: 7 one on any ecological literature, on the importance 8 of heterogeneity to high order vertebrates, 9 particularly when you get to a species like a Snail 10 Kite that basically has one primary prey, it is a 11 very tight coupling between predator and prey, and 12 they become very sensitive to anything that affects 13 their ability to capture prey and their reproduction. 14 The other, though, is based on Dr. Rob 15 Bennetts, he has a number of publications out on the 16 Snail Kite. 17 MR. HYDE: Why don't we label this Exhibit 18 15. 19 (Fleming Exhibit 15 was marked for 20 identification) 21 BY MR. HYDE: 22 Q. Would you identify what's been labeled as 23 Exhibit 15 for me? 24 A. This is a manuscript produced by Dr. Rob 25 Bennetts, et al, titled: The Snail Kite in the 86 1 Florida Everglades: A food Specialist in a Changing 2 Environment. 3 Q. Is this the same Dr. Bennetts that you 4 were referring to a few moments ago? 5 A. Yes, it is. 6 Q. And there would be a study upon which you 7 would be relying for the purposes of your testimony 8 regarding impacts upon the Snail Kite population? 9 A. This, and he has a number of other studies 10 and reports that are referenced in this document. 11 Q. Is Dr. Bennetts considered to be an expert 12 on the Snail Kite? 13 A. Yes, he is. 14 Rogders is a co-author. 15 Q. James A. Rodgers, Jr.? 16 A. And Bennetts, both of them are. 17 Q. Experts? 18 A. Experts on the Snail Kite. 19 Q. Who is Mike Collopy, C O L L O P Y? 20 A. He was a professor at the University of 21 Florida, he is no longer there now. 22 Q. Would you not consider him an expert in 23 the subject matter? 24 A. He's a good researcher, but Snail Kite 25 experts are Rodgers and Bennetts. 87 1 Q. When you are referring to Bennetts' other 2 studies, are you referring to those that were 3 specifically listed -- 4 A. Plus he has an ongoing study. 5 Q. But you are speaking specifically about 6 the documents listed in his literature cited? 7 A. Yes, and also because I talked to Rob; he 8 has an ongoing study. 9 Q. You also made mention of possible 10 testimony regarding the Cape Sable Sparrow? 11 A. Yes. 12 Q. Would your opinion in that regard be 13 similar to that regarding the Snail Kite? 14 A. Yes, in the sense that that dealt with the 15 question of if we had to use water, unclean water to 16 restore sheet flow to the peripheral wetlands that 17 had a nutrient load, and it is such that we would 18 start getting plant community mosaic changes. 19 Q. Again, though, your testimony about this 20 transition based on nutrient enrichment, is based on 21 the studies of others? 22 A. Yes. 23 Q. Is your opinions regarding the Cape Sable 24 Sparrow predicated on any specific study such as that 25 one done by John Curnutt and Dr. Stuart Pimm? 88 1 A. And there are not many, but several prior 2 studies listed. 3 MR. HYDE: Go ahead and mark that. 4 (Fleming Exhibit 16 was marked for 5 identification) 6 BY MR. HYDE: 7 Q. Would you identify what's been labeled 8 Exhibit 16 for me? 9 A. It is a manuscript in the form of a report 10 entitled: Status and Ecology of the Cape Sable 11 Seaside Sparrow done by two collaborators with the 12 National Park Service, John Curnutt and Dr. Stuart 13 Pimm. 14 Q. Is that the study you were referring to 15 just a few moments ago? 16 A. Yes,, it is. 17 Q. And the other literature that you would be 18 relying upon is that which is cited? 19 A. What is cited in here. 20 Q. I have a few brief questions about one 21 other subject, and I think we can probably finish up 22 here. 23 I understand from a deposition that was 24 taken of another witness last week and from the 25 documents that I believe was inadvertently produced 89 1 to me here today, that you have been in some dispute 2 regarding a publication of a book by the St. Lucie 3 Press on the Everglades. 4 Would that be correct? 5 A. Yes. 6 Q. Can you explain to me what the basis of 7 that dispute is other than the fact that -- go ahead, 8 maybe you can explain to me what the basis of the 9 dispute is. 10 A. Just that certain conclusions that are 11 offered in several chapters in that book are not, do 12 not appropriately credit the original source of some 13 of the ideas given in those chapters. 14 Q. Was that directed to one of the authors of 15 the various chapters of those books or more than one? 16 A. Initially one. 17 Q. And to whom are you referring to regarding 18 that initial? 19 A. John Ogden. 20 Q. And was there another author of another 21 chapter in that book that, I guess, may have utilized 22 ideas without attribution? 23 A. In my opinion, yes, Steve Davis, not just 24 ideas, but data from other authors. 25 Q. Has there been any resolution of this 90 1 dispute? 2 A. Not yet. 3 Q. When you said that these two gentlemen 4 have made references without appropriate attributions 5 to other authors, I presume you were talking about 6 yourself? 7 A. The Fleming, et al, manuscripts that you 8 have here, that we have listed as exhibits. 9 Q. Were any of those Fleming, et al, 10 manuscripts that you I just mentioned intended for 11 incorporation into this Everglades text at any point? 12 A. Originally all of them were. 13 Q. Do you know why they were not included in 14 the final text? 15 A. I withdrew them. 16 Q. Did you withdraw them for this very 17 reason? 18 A. Yes. 19 Q. Would the controversy be resolved by these 20 authors making appropriate attributions at least from 21 your perspective? 22 A. It would go a long way, yes. 23 Q. I think we are at the end of our 24 deposition here today, Mr. Fleming. I thank you. I 25 would like to go over just sort of concluding thing 91 1 here, an observation. 2 My purpose in taking this deposition is to 3 find out what your opinions are going to be for the 4 final hearing, and so I don't want to be surprised if 5 you come up with something new in the final hearing, 6 so let me ask you again, have we fairly and 7 comprehensively covered the areas of your anticipated 8 testimony? 9 A. Yes. 10 Q. If in the course of your next several 11 weeks, and you have the time -- it seems unlikely -- 12 and you come up with additional opinions or 13 additional supporting data for the opinions you 14 already expressed, would you so advise your counsel 15 so she can in turn advise me? 16 A. Yes. 17 Q. My purpose in asking that question is I 18 don't like to be surprised at trial, and I think you 19 are an honorable person and you will do that for me, 20 okay? 21 A. Yes, no problem. 22 MR. HYDE: Having said that, I thank you 23 again. You have been a cooperative witness and I 24 look forward to seeing you. 25 THE COURT REPORTER: Do you want a copy of 92 1 the transcript, counsel? 2 MR. HYDE: I will order this. 3 MS. STARK: I will order this too. 4 (Witness excused) 5 (Thereupon, at 2:45 p.m., 6 the deposition was concluded) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 93 1 EXCEPT FOR THE CORRECTION MADE 2 HEREIN BY ME, I CERTIFY THAT 3 THIS IS A TRUE AND 4 ACCURATE TRANSCRIPT 5 6 _______________________________ 7 D. MARTIN FLEMING 8 9 STATE OF FLORIDA) 10 ) SS: 11 COUNTY OF DADE ) 12 13 Sworn and subscribed to before me, this 14 day of , 1994. _______ _________ 15 16 ___________________________ 17 Notary Public in and for 18 the State of Florida at 19 Large 20 21 22 23 24 25 94 1 CERTIFICATE OF OATH 2 3 The State of Florida ) 4 County of Dade ) 5 6 I, the undersigned authority, certify that 7 DON MARTIN FLEMING personally appeared before me and 8 was duly sworn. 9 10 WITNESS my hand and official seal this 11 day of , 1994. 12 13 14 15 ________________________________ 16 BARNET I. ABRAMOWITZ, CSR-CM 17 Notary Public - State of Florida 18 My Commission No. CC 097881 19 Expires: April 10, 1995 20 21 22 23 24 25 95 1 CERTIFICATE 2 STATE OF FLORIDA ) COUNTY OF DADE ) 3 I, Barnet I. Abramowitz, CSR-CM, do hereby 4 certify that I was authorized to and did report said deposition in stenotype; and that the foregoing 5 pages, numbered from 1 to 92, inclusive, are a true and correct transcription of my shorthand notes of 6 said deposition. 7 I further certify that I am not an attorney or counsel of any of the parties, nor am I a 8 relative or employee of any attorney or counsel connected with the action, nor am I financially 9 interested in the action. 10 The foregoing certification of this transcript does not apply to any reproduction of the 11 same by any means unless under the direct control and/or direction of the certifying reporter. 12 Dated this day of , 1994. 13 _______________________ 14 Barnet I. Abramowitz, CSR-CM 15 The State of Floria ) County of Dade ) 16 The foregoing certificate was acknowledged 17 before me this day of , 1994, _______ ________________ by Barnet I. Abramowitz, who is personally known to 18 me. 19 _________________________ 20 Notary Public - State of Florida Commission No. CC 030636 21 My Commission expires: July 17, 1994 22 23 24 25