1

1 Division of Administrative Hearings

2 Department of Administration, State of Florida

SUGAR CANE GROWERS COOPERATIVE )

4 of FLORIDA; ROTH FARMS, INC.; and )

WEDGWORTH FARMS, Inc., )

5 Petitioners )

V ) DOAH Case

6 SOUTH FLORIDA WATER MANAGEMENT ) No. 92-3038

DISTRICT, an agency of the State )

7 of Florida; et al., )

Respondents. )

8 ____________________________________)

FLORIDA SUGAR CANE LEAGUE, INC., and)

9 UNITED STATES SUGAR CORPORATION; )

Petitioners, )

10 V ) DOAH Case

SOUTH FLORIDA WATER MANAGEMENT ) No. 92-3039

11 DISTRICT, an agency of the State )

of Florida; et al., )

12 Respondents. )

____________________________________)

13 FLORIDA FRUIT and VEGETABLE )

ASSOCIATION; LEWIS POPE FARMS; )

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

and HUNDLEY FARMS, INC., )

15 Petitioners, )

V ) DOAH Case

16 SOUTH FLORIDA WATER MANAGEMENT ) No. 92-3040

DISTRICT, an agency of the State )

17 of Florida; et al., )

Respondents. )

18 ____________________________________)

19 VOLUME I

DEPOSITION OF MARK D. MAFFEI, Ph.D.

Taken before Rachel W. Bridge, Professional

21 Reporter and Notary Public in and for the State of

Florida at large, pursuant to notice of taking

22 deposition filed by the Petitioners in the above

cause.

23 - - -

Monday, March 21, 1994

24 319 Clematis Street, Suite 500

West Palm Beach, Florida 33401

25 9:05 a.m. - 4:45 o'clock p.m.

1 APPEARANCES:

2 On behalf of the Petitioners Florida Sugar

Cane League, Inc., and United States Sugar Corp.:

Earl, Blank, Kavanaugh & Stotts, P.A.

4 One Biscayne Tower, Suite 3636

Two South Biscayne Boulevard

5 Miami, Florida 33131

By: JONATHAN GAINES, ESQUIRE

7 On behalf of Sugar Cane Growers:

8 Hopping, Boyd, Green & Sams

123 South Calhoun Street

9 Tallahassee, Florida 32301

By: ROBERT P. SMITH, ESQUIRE

10 and

JEFFREY J. WARD, ESQUIRE

11 In-House Counsel

Sugar Cane Growers

On behalf of the Intervenor United States:

U.S. Attorney's Office

14 155 South Miami Avenue

Suite 600

15 Miami, Florida 33130

By: SUZAN HILL PONZOLI, ESQUIRE

I N D E X

- - -

WITNESS: DIRECT CROSS REDIRECT RECROSS

Mark D. Maffei, Ph.D.

By Mr. Smith 4

1 - - -

2 E X H I B I T S

3 - - -

NUMBER PAGE DESCRIPTION

Maffei Exhibit O 4 Declaration of Mark

6 D. Maffei, Ph.D.

7 Maffei Exhibit E-2 24 Pages 124 and 125 of Supporting

Information Document 3-13-92

Maffei Exhibit A 46 Preliminary Evaluation Report

9 on the Effects of Fish & Wildlife

Resources of the Everglade

10 Drainage and Flood Control Project

11 Maffei Exhibit B-3 60 House Document 643

12 Maffei Exhibit C 66 Series of documents, including

10-27-49 letter from Gerald Baker

13 to director of Fish & Wildlife

Service

Maffei Exhibit 24 86 Davis map

Maffei Exhibit H 94 Ecology of Vegetation Transects

16 A & B Loxahatchee National

Wildlife Refuge

Maffei Exhibit I 99 Report of the Special Study

18 Team on the Fla. Everglades

19 Maffei Exhibit 25 111 John Davis map, 1967

20 Maffei Exhibit M 116 House Document 369, 1968

21 Maffei Exhibit T 140 Newspaper article, "Keeping

Marshes Wet Makes For

22 More Kites"

23 Maffei Exhibit J 155 A Survey of the Archeology

and History of Loxahatchee

24 National Wildlife Refuge

1 P R O C E E D I N G S

2 - - -

3 Thereupon,

4 Mark D. Maffei, Ph.D.,

5 being by the undersigned Notary Public first duly

6 sworn, was examined and testified as follows:

7 THE WITNESS: Yes.

8 DIRECT (Mark D. Maffei, Ph.D.)

9 BY MR. SMITH:

10 Q. You are Dr. Mark Maffei?

11 A. Correct.

12 Q. And your title at the Loxahatchee Refuge is

13 wildlife biologist?

14 A. Correct.

15 Q. Is there something more to your title than

16 that, senior wildlife biologist or --

17 A. I am often referred to as the senior

18 wildlife biologist, because there are currently three

19 of us that have the title wildlife biologist.

20 Q. I see. You have been there the longest?

21 A. Yes.

22 (The document was marked

23 Maffei Exb. No. O.)

24 BY MR. SMITH:

25 Q. Dr. Maffei, I'm going to hand you Exhibit O

1 for identification to your deposition, which is a

2 copy of the Declaration of Mark D. Maffei, Ph.D.,

3 September 4, 1990 in the federal litigation.

4 I ask you to look at that document, tell me

5 if you recognize it and whether you have had occasion

6 to look at it in recent times.

7 A. I recognize it as my declaration. Somebody

8 wrote on page four. I don't recognize that. And I

9 have not reviewed it in recent times.

10 Q. Disregarding the summary of numbers there

11 in the right-hand column of page four, that is your

12 declaration?

13 A. Correct.

14 Q. As of that time. Would you look at it and

15 tell me to what extent, if any, the factual

16 descriptions contained in that document are correct

17 today and to what extent, if any, the opinions

18 expressed there are your opinions today and to what

19 extent they have changed in either case?

20 MS. PONZOLI: Object to form. It's a very

21 compound question.

22 BY MR. SMITH:

23 Q. I'll take you back through it. No sense,

24 we will not try to differentiate in my question in

25 between facts and opinions. I will just ask you to

1 tell me are the facts there as represented as of

2 September 1990 facts today as you observe them?

3 A. The facts in paragraph three look to be the

4 same.

5 The facts in paragraph four appear to be

6 the same.

7 The facts in paragraph five appear to be

8 the same.

9 Paragraph six references extreme flooding.

10 I don't believe I would write such a phrase were I to

11 do this declaration today.

12 Q. Referring to the historical characteristic?

13 A. Correct.

14 Q. All right.

15 A. Paragraph seven appears to be consistent

16 with my understanding today.

17 Paragraph eight appears to be consistent

18 with my understanding today.

19 Paragraph nine appears to be consistent,

20 with the exception that were I to write this today, I

21 either would not include a reference to the Florida

22 panther, or I would qualify that inclusion.

23 Q. Sir, so I won't have to come back to that,

24 what's the reason for your observation?

25 How would you qualify it or why would you

1 omit it?

2 A. In the seven years that I have been there,

3 I have responded to perhaps two dozen reports of

4 Florida panthers in, on or around the Refuge. Some

5 of these reports have been from what I considered to

6 be qualified observers; however, no physical evidence

7 of Florida panthers on or near the Refuge has been

8 located. So I may qualify the statement with that

9 additional information.

10 Q. While we are on the panther, is there a

11 reference to the presence of the Florida panther in

12 what is now the Refuge in the historical documents?

13 A. I don't recall reference to Florida panther

14 in historical documents.

15 Q. All right. Carry on.

16 A. Paragraph 10 appears to be consistent with

17 my understanding today.

18 Paragraph 11 appears to be consistent with

19 my understanding today.

20 Paragraph 12 appears to be consistent with

21 my understanding today.

22 Paragraph 13 appears to be consistent with

23 my understanding today.

24 Paragraph 14 is generally consistent with

25 my understanding today.

1 Paragraph 15 is consistent with my

2 understanding today.

3 Paragraph 16 is generally consistent with

4 my understanding today.

5 Q. Is what consistent?

6 A. Generally consistent.

7 I would not write paragraph 17 as it is

8 presented here.

9 Q. Would you elaborate on that, please, sir?

10 A. I do not believe I would use the term drier

11 in discussing these areas. I would discuss it in

12 terms of reduced hydroperiod or extended hydroperiods

13 instead of using the term wetter.

14 And I do not believe necessarily that tree

15 islands have drowned.

16 Q. What I could correctly conclude from that

17 then, that with that revision reflects your opinion

18 that there has not been a general shortage of water

19 in Loxahatchee?

20 A. I don't know what you mean a general

21 shortage of water in Loxahatchee.

22 Q. All right. You don't know what I mean?

23 A. I'm not sure how what I just said causes

24 you to conclude that I think there has not been a

25 general shortage of water.

1 Q. Well, do you or do you not think there has

2 been a general shortage of water in Loxahatchee over

3 the past 50 years?

4 A. With regard to what?

5 Q. Wet water, presence of water.

6 A. The area remains a marsh that's had

7 sufficient water to remain a marsh.

8 Q. It's had the right quantity and timing of

9 water for 50 years; is that your opinion?

10 A. Right for what? Certainly not right to

11 grow sugar cane. Right to maintain a marsh that is

12 there today.

13 Q. Right by the standards of what you consider

14 to be the authentic Loxahatchee vegetative and fauna

15 characteristics?

16 MS. PONZOLI: I'm going to object to form.

17 I think these words right and authentic are very

18 problematic, Mr. Smith, and I think it's

19 probably degenerating into an argument with the

20 witness, because the form of the question is

21 unclear and ambiguous.

22 Could you phrase your hydroperiod question

23 a different way?

24 MR. SMITH: Yes, I shall.

1 BY MR. SMITH:

2 Q. Do you have an opinion, Dr. Maffei, as to

3 whether at any time in the past 50 years what you

4 consider to be the natural hydroperiod or natural

5 amount of water has been in the Loxahatchee abnormal?

6 A. Do I have an opinion as to whether the

7 natural amount of water has been in the Loxahatchee

8 abnormal?

9 Q. Yes.

10 A. That question doesn't make sense to me when

11 you add the word abnormal at the end of that

12 question. Are you --

13 Q. It's the qualification of abnormal that

14 gives you trouble with my question?

15 A. Are you asking -- yes, that gives me

16 trouble.

17 Q. Okay, let me try it again.

18 When you speak of drought conditions, you

19 are speaking of drier than you would wish to have; do

20 you agree?

21 A. Drought refers to a rainfall deficit.

22 Q. Deficit compared to what?

23 A. Than an average year.

24 Q. So you are taking it as the norm what is

25 average for a period of time?

1 A. That's generally accepted norm.

2 Q. That's what you are taking --

3 A. Correct.

4 Q. -- as the norm, the average? All right.

5 But when you say in paragraph 16 "The

6 quantity and timing of water deliveries to the Refuge

7 has generally been consistent with that which is

8 necessary to maintain characteristic spatial

9 diversity," would you say that that is the average

10 spatial diversity that is maintained or how would you

11 equate that statement with your observation about

12 averages?

13 MS. PONZOLI: Mr. Smith, I have to object

14 to the question. I think you have misread the

15 first sentence of number 16.

16 MR. SMITH: Look, just excuse me. Let the

17 ask the witness the question. I'm trying to

18 understand his opinion and I would like to have

19 his explanation, Ms. Ponzoli.

20 MS. PONZOLI: Well, I'm trying to be very

21 patient with some difficult questions, and your

22 question on number 16 includes a misstatement of

23 his paragraph 16, so I cannot let it pass.

24 THE WITNESS: There is a higher degree of

25 spatial diversity present in the system. There

1 is today.

2 Therefore, my conclusion is that the

3 deliveries of water in the time frame which you

4 referenced have been adequate to maintain a

5 spatial diversity that occurs today.

6 BY MR. SMITH:

7 Q. Spatial diversity refers to what?

8 A. Spatial diversity refers to changing

9 features of the ecosystem as you move from Point A to

10 Point B in space.

11 Q. Okay. In paragraph 17 you made the

12 statement "Shift in vegetation occur as a result of

13 these changes to the natural hydrology."

14 Is that statement true today, in your

15 opinion?

16 A. I believe it is.

17 Q. But you say you would not write that some

18 areas "remain drier than they were historically,

19 while other areas are wetter"?

20 A. I said I would not use the words drier or

21 wetter. I would reference hydroperiods being

22 shortened or extended.

23 Q. Hydroperiod referring to the relationship

24 between the time in which a certain area is covered

25 with water and certain area in which it is not

1 covered with water?

2 A. Correct.

3 Q. And so at the time you wrote this, the

4 effect of your observation as you corrected today by

5 the terminology is that some portions of the Refuge

6 had a shorter hydroperiod than the Loxahatchee area

7 had historically, while other areas had a more

8 extended hydroperiod?

9 A. At the time I wrote this, it was my belief

10 that some areas had a shorter hydroperiod than

11 occurred prior to 1880, for example, and some areas

12 had a longer hydroperiod than occurred prior to 1880.

13 Q. And what do you think now?

14 A. I believe that in general, the entire area

15 has a hydroperiod shorter than what occurred prior to

16 1880.

17 Q. But nevertheless, the quantity and timing

18 of water deliveries over the years has been adequate

19 to maintain the spatial diversity that you think is

20 characteristic of the area; is that correct?

21 A. That's correct.

22 Q. All right. Will you carry on then?

23 A. Paragraph 18 is generally consistent with

24 my opinions of today.

25 Q. Would you elaborate the sentence, next to

1 last sentence on that page, "Plant species which I

2 have learned to associate to high nutrient conditions

3 such as various species of Sagittaria (arrowheads),

4 Pistia stratiotes," if that's the way you say it,

5 "(water lettuce), species of Pontederia

6 (pickerelweeds) and species of Typha (cattails) are

7 abundant."

8 Would you elaborate that? How did you

9 learn to associate high nutrient conditions with

10 those species?

11 A. Those species are generally located more

12 densely or more abundantly near bird rookeries,

13 alligator holes, in or near canals than they are

14 throughout the remainder of the Refuge.

15 Q. And the last sentence, the areas which you

16 consider to be most severely impacted are dominated

17 by large stands of cattails or in some instances

18 Salix species or willow, those areas refer to areas

19 in or near the canals or other areas?

20 A. The areas of large stands of cattails that

21 are near the canals are most likely to be the areas

22 that are being impacted by the discharges from S-5A

23 and S-6; however, I don't necessarily foreclose the

24 possibility that areas in interior marshes where

25 these species are present have not also been impacted

1 to some degree by surface inflows.

2 Q. Are Salix species, willow, characteristic

3 of a greater than average nutrient presence?

4 A. Based on work that I have reviewed and my

5 own observations out there, I would say that Salix is

6 characteristic of elevated nutrient availability,

7 yes.

8 Q. What works come to mind?

9 A. Work Order 32 in particular.

10 Q. That was reported in 1992, I believe?

11 A. That's correct.

12 Q. Prior to that, at the time you made this

13 declaration what works did you have in mind, if any?

14 A. Work Order 32, sir.

15 Q. Can you think of any historical or

16 vegetative analysis prior to Work Order 32 which

17 correlated nutrient presence with Salix species?

18 A. I have recollection of other references to

19 the invasion of portions of the Everglades marshes by

20 Salix. I don't recall at this point the identity of

21 those.

22 Q. In what time period were those observations

23 made?

24 A. I don't recall.

25 Q. Were the Salix invasions to which you

1 referred before the influence of nutrient loading

2 from the EAA, in your opinion?

3 MS. PONZOLI: Object to form. I don't

4 think he referred to Salix invasions.

5 BY MR. SMITH:

6 Q. Did you refer to Salix invasion? Did I

7 misunderstand you?

8 A. I don't believe I referred to Salix

9 invasion.

10 Q. Well, I thought I understood you to refer

11 to literature that referred to Salix invasion of

12 other areas of the --

13 A. Perhaps, I did.

14 Q. Well, I'm asking you what literature before

15 Work Order 32 correlates species Salix with

16 nutrients.

17 A. I have answered that question.

18 Q. What was your answer? Tell me again,

19 please.

20 A. I don't recall specific references.

21 Q. And what was the time frame in which these

22 observations or analyses were made?

23 A. I don't recall that, but if your question

24 is whether it's a pre or post project, I believe it

25 was a post project.

1 Q. All right, sir, would you proceed?

2 A. I do not believe I would write paragraph 19

3 as it is stated there.

4 Q. How would you qualify it or change it?

5 A. I would qualify or change the last sentence

6 to read, "In this context, imbalance refers to

7 abnormally high populations of some species with the

8 concomitant reduction in the populations of other

9 species as a result of increased --" perhaps I would

10 use the word fertility, perhaps I would use the word

11 nutrient availability. Perhaps I would use some

12 other phrase to get across the idea that the change

13 in species is a result of increased fertility.

14 Q. Is the sense of that qualification that you

15 would attribute to nutrient enrichment only that

16 portion of the increase in certain populations and

17 decrease in other populations as were in fact the

18 result of nutrient influence?

19 MS. PONZOLI: Would you like it read back?

20 THE WITNESS: Yes, please.

21 (Thereupon, a portion of the record

22 was read by the reporter.)

23 THE WITNESS: Yes.

24 BY MR. SMITH:

25 Q. And would I correctly suppose that you

1 would qualify paragraph 19 today were you to write it

2 again because you recognize that changes in

3 populations of different species may result from

4 other factors than nutrient influence?

5 A. That may be a second reason.

6 The primary reason I would change it is

7 because today my opinion and understanding is that

8 the term imbalance is a term used in the Florida

9 Statutes to refer to a particular problem caused by

10 pollution, and therefore I would want to make it

11 clear that I am attempting to use the term imbalance

12 the same way it's used in the Florida Statutes.

13 MR. GAINES: I'm sorry, did you say you

14 were or you were not?

15 THE WITNESS: I did not use it that way.

16 BY MR. SMITH:

17 Q. When you wrote 19?

18 A. When I wrote 19.

19 Q. But you would like to write it today so you

20 did use it in that sense; is that what you are

21 saying?

22 A. If I wrote it today with my knowledge of

23 what the statute says, I would use it in that term.

24 I also agree that additions of nutrients

25 are not the only factor which can change species

1 composition in the marsh.

2 Q. And do you consider those to be imbalances?

3 MS. PONZOLI: Object to form. Do you mean

4 imbalances as he has been referring under the

5 statute or just imbalance in some generic sense?

6 MR. SMITH: I mean imbalance in some

7 generic sense.

8 THE WITNESS: They can be.

9 BY MR. SMITH:

10 Q. Do you know that there have been imbalances

11 in that generic sense in the native or other flora of

12 the Loxahatchee at many different times in the past

13 50 years, a consequence of extended or shortened

14 hydroperiod?

15 A. I believe the distribution of species and

16 community types today is different than what it was

17 100 or more years ago.

18 To the extent that I would define that as

19 an imbalance, imbalance in that regard is a fairly

20 vague term.

21 Q. All right. Paragraph 20?

22 A. Paragraph 20 is generally consistent with

23 my opinions today.

24 Paragraph 21 is generally consistent with

25 my opinions of today.

1 Paragraph 22 is generally consistent with

2 my opinions of today; however, there is one statement

3 which I would modify slightly.

4 The sentence starts on the seventh line of

5 that paragraph that begins "Once a snail is sighted,

6 the snail kite dives into the water to capture the

7 snail."

8 That appears like I'm saying the bird

9 actually dives and submerges itself in the water, and

10 I would rephrase it so that it doesn't appear to say

11 that.

12 Q. The bird doesn't dive into the water?

13 A. I don't believe they generally submerge

14 themselves in the water, for example, as an anhinga

15 would to capture a fish.

16 The bird dives to the water surface, and

17 part of it the bird will be submerged, but I'm just

18 saying this reference appears to be a little too

19 strong as to the bird's movement to the water

20 surface.

21 MS. PONZOLI: May we take a break and trade

22 his chair?

23 (Discussion held off the record.)

24 BY MR. SMITH:

25 Q. All right, sir, would you proceed?

1 A. Paragraph 23 is generally consistent with

2 my opinions of today; however, were I to write this

3 paragraph today, I would probably modify the sentence

4 that begins on the eighth line that reads "This is

5 too low to support the aquatic life associated with

6 the Everglades."

7 Q. How would you modify it?

8 A. I would likely reference specific species

9 which appear to be unable to tolerate dissolved

10 oxygen concentrations in the water column below one

11 part per million.

12 Q. Which are?

13 A. I can give you an example or two of species

14 that I would include in that list. Large mouth bass

15 is an example of a fish that I would include as a

16 species that was unable to tolerate those low levels

17 of DO for extended periods of time.

18 And were I to write this today, I would go

19 through various references in the literature to

20 insure that my listings were accurate.

21 Q. Now does that mean the large mouth bass are

22 not found in the canals?

23 A. That's not what it means.

24 Q. What do you mean?

25 A. It means large mouth bass do not survive if

1 dissolved oxygen levels in the canals are below one

2 for extended periods of time.

3 Q. Have large mouth bass been displaced from

4 any particular area of the Refuge?

5 A. It is my opinion that at times they are

6 displaced from areas of the Refuge.

7 Q. What areas?

8 A. I assume we are still talking about

9 displacement as a result of low DO?

10 Q. Well, I presume that's what you are

11 describing, yes.

12 A. Okay. I believe at times the areas of the

13 L-40 canal and the L-7 canal at the outflows of the

14 S-5A pump station have had large mouth bass

15 populations reduced.

16 I believe this has also occurred in the

17 L-40 canal in the vicinity of the Acme pump stations,

18 in the vicinity of the S-6 pump station and the L-7

19 and L-39 canals, and to a lesser extent along the

20 L-39 canal.

21 Q. What's the basis for your belief that on

22 those occasions populations have been reduced in that

23 area?

24 A. The basis for that opinion is a round of

25 fish collection which I participated in. I don't

1 recall whether it was 1987, 1988 or 1989, but at that

2 time we were collecting large mouth bass for the

3 purpose of having the edible portions of the fish

4 analyzed for mercury content.

5 We collected bass at I believe six

6 locations in the canal. And the size of large mouth

7 bass obtained and the number of hours it took to

8 collect the fish -- we were attempting to collect

9 five fish at each location -- varied greatly with

10 location.

11 Q. And so you found fewer fish or smaller fish

12 at these outfalls of these structures; is that what

13 you are saying?

14 A. That's correct.

15 Q. All right, sir, carry on.

16 A. Paragraph 24 is generally consistent with

17 my opinions of today, although the number of acres

18 referenced is not a reference which I would

19 necessarily support today.

20 Q. How would you qualify it or change it?

21 The reference there is to 24,000 acres may

22 be damaged?

23 A. Correct. I do not have today a firm

24 opinion of what I would write instead of 24,000

25 acres. I have a question that I think needs to be

1 answered.

2 Q. The question being?

3 A. The question being has the entire marsh

4 been impacted in some way so that were I to rewrite

5 this, it would be necessary to say all of the Refuge

6 may be damaged, or would I feel it appropriate to

7 identify some other number?

8 Q. That question has not been answered to your

9 satisfaction?

10 A. No, sir. I have not answered it to my

11 satisfaction for myself.

12 Q. At the time you wrote this declaration and

13 your reference in this paragraph 24 and back on

14 paragraph five as well to the 24,000 acres being

15 damaged, what were the 24,000 acres, where were they

16 located?

17 A. Generally in the west and southwest

18 portions of the Refuge.

19 Q. Let me show you Exhibit E-2 for

20 identification, which is a portion, it's a cover page

21 and pages 124 and 126 of the Supporting Information

22 Document dated March 13, 1992.

23 MR. SMITH: Would you mark that, please?

24 (The document was marked

25 Maffei Exb. No. E-2.)

1 BY MR. SMITH:

2 Q. I would like you to locate on that diagram

3 Figure 22 the 24,000 acres to which you referred when

4 you made your declaration in 1990.

5 Would you take this marker, please, and

6 mark on that the portions?

7 MS. PONZOLI: Mr. Smith, I have to tell you

8 I have sort of an old fashioned rule. I don't

9 really have my witnesses draw maps for people or

10 write things for people. I'm sorry, let me

11 finish my objection.

12 I don't believe that in a deposition that

13 we are compelled to come and draw for you or

14 mark for you, so I can have him describe

15 generally for you where on the map he believes

16 his 24,000 acres is, but I will not allow him to

17 draw for you. I don't believe we are compelled

18 to draw for you in a deposition.

19 BY MR. SMITH:

20 Q. I don't want you to draw. I want you to

21 just indicate so that will reflect on the record.

22 Go ahead, Dr. Maffei, can you identify the

23 24,000 acres?

24 A. In general, the 24,000 acres that I was

25 referring to would include the area on this map

1 identified as sawgrass-cattail portions of the area,

2 identified as sawgrass pickerelweed, portions of the

3 Refuge identified as sawgrass spikerush, and

4 including a portion of the Refuge just interior to

5 the canals all the way around.

6 In general, that identifies the areas that

7 I would be talking about.

8 Q. All right, thank you, sir.

9 When you made your declaration, did you

10 attempt a rather close approximation of the number of

11 acres that you considered to be damaged to reach the

12 figure 24,000, approximately?

13 A. Based on my understanding at the time, I

14 did.

15 Q. So you have identified the areas shown by

16 the legend and markings on this map as the area

17 designated sawgrass-cattail, sawgrass pickerelweed

18 brush and sawgrass spikerush?

19 Did I correctly understand you?

20 A. Generally the area that I was looking at is

21 similar to areas encompassed by those three classes;

22 in addition, an area around the entire Refuge.

23 Q. Yes.

24 A. And I'm not necessarily excluding small

25 portions of other perimeter areas, for example, the

1 sawgrass mixed grass myrtle, mostly woods area, which

2 is near the perimeter, but in general, that's the

3 area.

4 Q. Now you have been looking at the diagram

5 and comparing it to the legend; is that correct?

6 A. That's been what I attempted to do, yes,

7 sir.

8 MS. PONZOLI: Mr. Smith, I will object to

9 your marking that yourself. It is no longer an

10 exhibit to which he has testified, or at least

11 the record will clearly reflect that you have

12 marked what you understand him to have said.

13 BY MR. SMITH:

14 Q. Do I take it that you included in the

15 24,000 acres some sawgrass mixed grass and myrtle

16 areas as well now?

17 A. I'll need to see the exhibit.

18 MS. PONZOLI: Do you have another copy,

19 Mr. Smith?

20 MR. SMITH: Here. Maybe on our next break

21 you can make me a copy.

22 THE WITNESS: Yes, I would include some of

23 the sawgrass mixed grass myrtle. I would

24 include some of the ridge sawgrass areas.

1 BY MR. SMITH:

2 Q. Dr. Maffei, are you including those areas

3 in the 24,000 acres referred to because of the

4 vegetative character of those areas as shown on this

5 exhibit?

6 A. No.

7 Q. Well, explain that, would you, please?

8 A. I did not use this exhibit when I attempted

9 to determine, I wrote my declaration how many acres I

10 believed were impacted.

11 Q. And you did not, when you made that

12 estimate, you were not referring to the character of

13 the vegetation in those areas either?

14 A. That was a part of the information that I

15 attempted to incorporate into the formulation of my

16 opinion.

17 Q. Well, what was the other part?

18 A. The hydrological characteristics of the

19 area.

20 Q. The vegetative and the hydrological

21 characteristics --

22 A. With respect --

23 Q. -- of the area were to you the signifiers

24 of the 24,000-acre damage?

25 A. With respect to the ability of canal waters

1 to penetrate the marsh, yes.

2 Q. My question is can you look at this map and

3 identify the areas that you believe when you made

4 your declaration constituted 24,000 acres of damage?

5 MS. PONZOLI: Mr. Smith, I believe he just

6 finished answering and telling you generally

7 where those areas are.

8 I don't understand your question.

9 BY MR. SMITH:

10 Q. Can you look at the map and tell that,

11 Dr. Maffei?

12 A. I can look at this map and recall to the

13 best of my memory what specific areas, what areas I

14 included when I made that determination of 24,000

15 acres.

16 Q. But that cannot be translated into the

17 vegetative characteristics as shown on this map?

18 A. This map does not match my understanding of

19 vegetative zones within WCA-1 either in 1990 or

20 today.

21 Q. Okay. What map does reflect your

22 understanding of vegetative zones in WCA-1 in 1990 or

23 today?

24 A. The classified image that's printed in the

25 report for Work Order 32 is the model on which I base

1 my opinions relative to vegetation within Loxahatchee

2 National Wildlife Refuge.

3 Q. And is that significantly different from

4 Figure 22 in the SWIM Plan document, in your opinion?

5 A. In my opinion, they are significantly

6 different. I'm not sure what you mean significantly,

7 but they are different representations of the

8 communities present on the Refuge.

9 Q. What were the signifiers to you of the

10 areas damaged constituting an estimated 24,000 acres

11 in 1990?

12 A. In addition to the presence of typha, we

13 had been discussing the ability of canal water to

14 move into the marsh from the canals.

15 And in the south portion of the Refuge

16 there is what is often referred to as a ridge,

17 although it is probably not truly a ridge, that runs

18 from the southeast corner of the Refuge towards the

19 northeast.

20 It was at that time my opinion that canal

21 water penetrated the marsh up towards that ridge with

22 some regularity.

23 Q. With what result?

24 A. With the result that nutrient in the water

25 in the canals was being distributed throughout that

1 area at a higher frequency than it was being

2 distributed throughout the entire Refuge.

3 Q. With what result?

4 A. With the result that the nutrient status

5 would be elevated and that changes to the ecosystem

6 would be affected.

7 Q. Which changes did you observe other than

8 the vegetative changes, the presence of cattails?

9 A. Another change that I observed in some of

10 those areas was the presence of hydrogen sulfide

11 odor, rotten egg smell, when the soils were

12 disturbed.

13 Q. Any others?

14 A. In some areas there was, there appeared to

15 me to be more luxurious growth of the plants that

16 were present.

17 Q. Any other effects that you observed?

18 A. In some areas the periphyton community

19 appears to be different.

20 Q. Any others?

21 A. That's all I can recall at this time.

22 Q. When were cattails present in what is now

23 Loxahatchee to a degree considered remarkable to

24 qualified observers?

25 A. Based on my review of annual reports and

1 documents related to weed control and discussions

2 with individuals who have had a long history at the

3 Refuge, Refuge personnel became concerned with the

4 appearance of cattails approximately the 1964, 1965,

5 1966 time frame.

6 Q. Looking at the next page of that exhibit,

7 E-2, is that quotation from Stieglitz published in or

8 written in 1964 the recorded observation of a

9 qualified person at the Refuge of what was deemed to

10 be a remarkable presence of cattail?

11 THE WITNESS: Would you read back the

12 question, please?

13 (Thereupon, a portion of the record

14 was read by the reporter.)

15 THE WITNESS: I don't see the word

16 remarkable in here, but the presence was enough

17 to result in efforts by Refuge personnel to

18 eliminate the cattail.

19 BY MR. SMITH:

20 Q. Well, Stieglitz in 1964 characterized the

21 cattail presence as a serious infestation on the

22 south end of the Refuge adjacent to the Hillsboro

23 Canal, did he not?

24 You are familiar with that original

25 document that's here quoted?

1 A. I don't know what the original document

2 quoted is.

3 Q. All right.

4 A. I may be.

5 Q. Let's look at the bibliography here. Look

6 at the bibliography to the SWIM Plan supporting

7 documents and read, if you would, into the record the

8 1964 Stieglitz document.

9 A. Stieglitz, W.O., 1964, a status report of

10 the vegetation of the Loxahatchee National Wildlife

11 Refuge (Conservation Area 1) unpublished mimeograph

12 report, Loxahatchee National Wildlife Refuge, Boynton

13 Beach, Florida, 12 pp.

14 Q. Are you familiar with that document?

15 A. I believe I have looked at it, yes, sir.

16 Q. It's a part of the records that you

17 inherited there at Loxahatchee Refuge; is it not?

18 A. It's among the records present at the

19 Refuge, yes, sir.

20 Q. Well, it was there when you came there

21 several years ago, wasn't it?

22 A. That's right. I don't own any of the

23 documents, sir. They are part of our files.

24 Q. Well, you agree that the sense of

25 Dr. Stieglitz -- who was Stieglitz?

1 A. Who is Stieglitz? Mr. Stieglitz at that

2 time I believe was the biologist for the South

3 Florida refuges.

4 Q. And the South Florida refuges were what?

5 A. My recollection is at that time the South

6 Florida refuges include the Loxahatchee National

7 Wildlife Refuge, included National Key Deer Refuge,

8 may have included Ding Darling Refuge, and probably

9 one or two others, but I'm not sure of the exact date

10 of the formation of the various other refuges.

11 Q. By whom was he employed?

12 A. U.S. Fish & Wildlife Service.

13 Q. Mr. Stieglitz in 1964 in this quoted report

14 attributes serious infestations of cattail growth to

15 recent drought conditions.

16 Do you agree with that characterization? I

17 mean did I characterize what he said correctly?

18 A. That appears to be what he said.

19 Q. Do you agree with that or not?

20 A. Do I agree that's what he appears to have

21 said?

22 Q. No, do you agree that he accurately

23 described what was occurring on the ground?

24 A. Is your question that you want me to

25 interpret what I think the conditions were at that

1 time?

2 Q. Yes, sir.

3 A. My opinion is that cattail seeds need a

4 dewatered surface on which to germinate, a mud flat

5 or a mud bank.

6 I believe that the drought to which

7 Mr. Stieglitz referred provided that, an appropriate

8 seed bed for those cattail plants to germinate.

9 I believe that soil fertility levels in the

10 areas where Mr. Stieglitz believed cattail were

11 becoming problematic were probably at that time

12 adequate to support the growth of these seedling

13 cattail plants.

14 Q. Well, we know that they were adequate if he

15 correctly observed that there was what he

16 characterized as a serious infestation, do we not?

17 The presence of the cattail would --

18 A. That's right, we know soil fertility levels

19 were adequate to support those cattail stands.

20 Q. You are saying that the drought condition

21 was responsible only for the germination of the seed,

22 but not for the maturation of the cattail stand?

23 A. That is correct. That is my belief.

24 Q. Are cattails a plant indigenous to the

25 Everglades generally?

1 A. It's my understanding that they are

2 indigenous to South Florida.

3 Q. Including the Everglades?

4 A. Yes, sir.

5 Q. And including the Loxahatchee area?

6 A. Yes, sir.

7 Q. Do you accept Mr. Stieglitz' observation as

8 true that "Cattail has been noted around the

9 peripheral canals and at numerous other sites within

10 the Refuge interior. The plant is well distributed

11 over the Refuge"?

12 Do you accept that as an accurate

13 observation as of 1964?

14 A. I have no reason to doubt Mr. Stieglitz'

15 interpretation of what he saw.

16 Q. Would it then follow from your acceptance

17 of that observation that whatever the conditions

18 were, including a nutrient level, if necessary,

19 necessary to support cattail were indeed present then

20 throughout the Refuge at that time?

21 A. I believe in those locations where

22 Mr. Stieglitz noted cattail at other sites within the

23 interior that the conditions necessary to support

24 cattail were present.

25 Q. Is it plain to you that Mr. Stieglitz

1 regarded that presence as an infestation, as an

2 abnormal presence?

3 A. I believe that's clearly Mr. Stieglitz'

4 interpretation.

5 Q. Do you have an opinion as to the source of

6 any contributing factors to the cattail growth as

7 observed and described by Mr. Stieglitz?

8 A. It is my belief that in order for a cattail

9 plant to establish itself and maintain itself within

10 Loxahatchee National Wildlife Refuge or probably for

11 that matter any place, it needs to have the

12 opportunity to germinate and then it needs to have

13 adequate soil fertility to support its growth and it

14 needs to have adequate light to support its growth.

15 Q. I'm asking whether you have opinion as to

16 the source of that adequate fertility?

17 A. My opinion is that that would vary from

18 location to location.

19 Q. The source of it would vary?

20 A. Correct.

21 Q. Well, isn't it plain to you that

22 Mr. Stieglitz was not describing alligator holes and

23 bird rookeries as abnormal characteristics of

24 accounting for this infestation?

25 A. Where he references the serious

1 infestations exist on the south end of the Refuge

2 adjacent to the Hillsboro Canal and where it has also

3 been noted around the peripheral canals, I would

4 agree he is not necessarily referencing alligator

5 holes or some other feature of the landscape.

6 Where he says, when he references numerous

7 other sites in the Refuge interior, it's not plain to

8 me at all what he is referencing.

9 Q. Well, at least it's clear, isn't it, that

10 he is referencing the canal areas, the same canal

11 areas that you yourself have described as damaged in

12 1990 and in 1994?

13 A. With the exception that in 1964 the area

14 appears to have been much smaller than it is today,

15 the areas I would say are generally similar.

16 Q. And is it your opinion that the source of

17 this capacity to sustain cattail growth in 1964 was

18 nutrients introduced through the S-5A or S-6

19 structures?

20 A. My opinion is that that's a reasonable

21 conclusion.

22 Q. Is that the conclusion you would prefer as

23 reasonable over any other that occurs to you?

24 MS. PONZOLI: Was the word prefer,

25 Mr. Smith? Object to the form.

1 THE WITNESS: I believe I stated earlier

2 that the source of the nutrients would vary from

3 site to site, and there may be other

4 explanations for particular locations.

5 BY MR. SMITH:

6 Q. Can you think of any candidates as

7 reasonable explanations for the occurrence of serious

8 infestations around the peripheral canal and at the

9 south end of the Refuge other than what you have

10 described as nutrient inflow at S-5A and S-6?

11 A. It may be that some of the area was

12 impacted by disturbance of canal construction.

13 Q. Disturbance as capacity to encourage

14 cattail growth?

15 A. Disturbance may have the capacity to result

16 in changes in phosphorus availability.

17 Q. What's the etiology of that?

18 A. An example may be when the canals are dug

19 and they go through many layers of peat, they may

20 bring to the surface concentrations of phosphorus

21 that may have resulted from, for example, the

22 presence of a bird rookery in the past, the presence

23 of an alligator hole in the past, the presence of a

24 fire which burned peat in the past.

25 Q. Do you believe it's plausible that the

1 construction of these canals in 1960 and before would

2 have unearthed the remains of bird rookeries or

3 alligator holes or fire ash sufficient to encourage

4 the serious infestations in the perimeter canals and

5 in the south end as Mr. Stieglitz described in 1964?

6 A. The greater the extent to which one wishes

7 to attribute the presence of cattail along the

8 perimeter canal by the unearthing of those types of

9 phosphorus deposits, the less plausible I think the

10 explanation is.

11 In other words, I think for some parts of

12 the infestation it's a plausible explanation. I

13 think to attribute all of it to that is less

14 plausible.

15 Q. It's not likely, is it, that old bird

16 rookery remains or fire residues or alligator hole

17 residues unearthed in the construction of the canals

18 would have produced stands of cattails such as

19 Stieglitz reported of such persistence as to resist

20 this eradication effort, is it?

21 MS. PONZOLI: I'm going to object to the

22 form, and you are arguing. I think he has

23 answered your question.

24 MR. SMITH: Can you answer the question?

25 MS. PONZOLI: He obviously already has.

1 THE WITNESS: I'm attempting to understand

2 what you meant by your question.

3 BY MR. SMITH:

4 Q. Well, you get a sense from Mr. Stieglitz'

5 report of a cattail infestation that was fairly

6 substantial and located in an area that was not

7 characterized by active bird rookeries or alligator

8 holes at the time he made the observation, do you

9 not?

10 A. Are we now limiting our discussion to the

11 425 acres of cattail?

12 Q. South end of the Refuge adjacent to the

13 Hillsboro Canal.

14 A. Okay. And your question is?

15 Q. And around the peripheral canals.

16 I'm asking, these areas are not typically

17 characterized by alligator holes or bird rookeries,

18 are they, or are they?

19 A. I am not sure where your question comes

20 from. You were discussing my opinions as to why the

21 cattail is there, what other factors may have been

22 responsible.

23 Q. And I'm asking you the, I'm trying to get

24 you to express your opinion of the probability that

25 the infestations that Stieglitz reported in 1964 were

1 attributed to the remains of bird rookeries,

2 alligator holes or fire damage unearthed by the

3 construction.

4 A. As I indicated in a previous answer, I

5 believe that type of explanation is plausible for

6 some of the occurrence. I do not believe it's

7 plausible for the entire occurrence.

8 Q. All right. And you are unable to quantify

9 the causative factor any further than that?

10 A. The source of the increased fertility?

11 Q. Yes.

12 A. As I sit here right now, nothing else comes

13 to mind.

14 Q. But using your definition of an imbalance

15 of flora that you previous used, which I understood

16 to be changes in floral characteristics and

17 consequence of nutrient introduction, was there an

18 imbalance as described by Stieglitz in 1964?

19 A. Given that an effort was implemented to try

20 to reduce the acreage of cattail, it appears to me

21 that Mr. Stieglitz or whoever implemented those

22 efforts believed an imbalance was occurring.

23 Q. Were there cattails in the area of the

24 peripheral canals and at the south end of the Refuge

25 when you came to the Refuge?

1 A. Yes, there were.

2 Q. And were they present in what you

3 considered to be objectionable densities?

4 A. Yes.

5 Q. And have they been there ever since?

6 A. You mean have they existed continuously as

7 they existed when I arrived at the Refuge?

8 No, sir, they have not existed continuously

9 as they were when I arrived at the Refuge in January

10 of 1987.

11 Q. And how have they changed?

12 A. How have they changed or how did they

13 change?

14 Q. Either.

15 A. In late 1988 we entered a period of

16 rainfall deficit or drought which resulted in much of

17 the Refuge drying, water not being present on the

18 surface of the marsh.

19 As I recall, sometime in late 1988 or early

20 1989, during a period when portions of the marsh,

21 including some of the area infested by cattail were

22 dewatered, South Florida experienced a freeze.

23 And I believe in May of 1989 the Refuge

24 experienced a fire and much of the area that had

25 cattail present when I arrived at the Refuge was

1 burned. After the fire, the cattail was not there.

2 Q. All right, sir.

3 A. So at that point in time the distribution

4 of cattail was different from what it was when I

5 arrived at the Refuge.

6 Q. Okay. And did it come back?

7 A. Yes, sir, it has come back.

8 Q. All right. Was it at the recommendation

9 and request of the Fish & Wildlife Service that the

10 project was expanded to enclose Loxahatchee with

11 dikes?

12 MS. PONZOLI: Do you understand the

13 question, Dr. Maffei?

14 THE WITNESS: I am not sure if you are

15 asking if the Fish & Wildlife Service designed

16 that portion of the project or if the Fish &

17 Wildlife Service had an influence on the manner

18 in which the project -- and I assume we are

19 talking about the central and South Florida

20 project --

21 BY MR. SMITH:

22 Q. Well, I'm not suggesting that the Wildlife

23 Service designed it, but I'm asking you whether the

24 Fish & Wildlife Service from your knowledge of the

25 records did influence that portion of the project as

1 included the sequestration of the Refuge behind

2 levees and canals and did so affirmatively seeking

3 that result.

4 A. I'm not aware that the area included as

5 Loxahatchee National Wildlife Refuge or Conservation

6 Area-1 would not have been surrounded by a levee were

7 it not for the Fish & Wildlife Service. I'm not

8 aware that that's the case.

9 I do believe that Fish & Wildlife Service

10 had an impact on the manner in which the levees and

11 canals were constructed.

12 Q. Well, can you confirm this, that the

13 project as originally designed and approved by

14 Congress in 1948 did not have the area later known as

15 Water Conservation Area Number 1, the major part of

16 Loxahatchee today, enclosed by dikes and canals, did

17 it?

18 A. The documents that I am aware of from the

19 late forties to early fifties included various

20 indications that that portion of the Everglades would

21 not be drained.

22 I don't recall, you may be able to show me,

23 I don't recall documents which exclude that area.

24 MR. SMITH: Let me show you a document and

25 ask you if you are familiar with it. This is a

1 Preliminary Evaluation Report on the Effects on

2 Fish and Wildlife Resources of the Everglades

3 Drainage and Flood Control Project by the Fish &

4 Wildlife Service, October 1947, and I ask that

5 it be marked as Exhibit A to the Maffei

6 deposition.

7 (The document was marked

8 Maffei Exb. No. A.)

9 MS. PONZOLI: Mr. Smith, is there some

10 internal consistency that will become apparent

11 to your exhibit letters and numbers over time?

12 MR. SMITH: These are the same exhibits as

13 you have previously seen in the Neely

14 deposition. I'm using the same numbers. When I

15 get to a new exhibit that goes beyond the

16 letters that I used then, I'll identify it, but

17 for consistency and to reduce confusion, I have

18 used the same letters.

19 MS. PONZOLI: Okay.

20 BY MR. SMITH:

21 Q. I'm referring you to Exhibit A for

22 identification, Dr. Maffei, and particularly to the

23 end of this document, and recognizing that it's hard

24 to read. Perhaps you have seen a more legible copy

25 of this.

1 Can you tell me whether you have ever seen

2 this document before?

3 A. I have seen this document. I don't know

4 whether I have seen a more legible copy.

5 Q. Well, on page 20 under the heading

6 Recommendations, paragraph 44 reads, "U.S. Fish &

7 Wildlife Service submits for consideration the

8 following preliminary recommendations with a view to

9 obtaining the fullest practicable development of the

10 fish and wildlife resources concerned: (a), that the

11 Hillsboro and North New River Canals be widened and

12 deepened and that the spill removed be placed on the

13 north or northeast banks to form continuous levees,

14 particularly along the boundaries of the Broward

15 County and Palm Beach County Conservation Areas."

16 Pausing there, does that refresh your

17 recollection or otherwise assist you in answering my

18 question, did not the Fish & Wildlife Service make

19 recommendations in the early stages of this project

20 that these areas be enclosed?

21 A. Well, this appears consistent with my

22 understanding that Fish & Wildlife Service commented

23 on the development of the areas.

24 They reference Broward County and Palm

25 Beach County Conservation Areas, so those areas were

1 already present in whatever plans they were

2 commenting on.

3 Q. Well, do you agree the Fish & Wildlife

4 Service recommended that the Hillsboro, North New

5 River Canals be widened and deepened?

6 A. That's what it says.

7 Q. And that the spoil be placed on the banks

8 in such a way to form continuous levees?

9 A. That's what it says.

10 Q. And so whether that was a proposal of a new

11 idea or an endorsement of the old one, the Fish &

12 Wildlife Service supported that idea, did it not?

13 MS. PONZOLI: Object to the form of the

14 question.

15 THE WITNESS: That's what this document

16 would indicate.

17 BY MR. SMITH:

18 Q. And in part b, did the Fish & Wildlife

19 Service support the idea of placing controlled

20 structures in those levees for the control of water

21 levels in the areas named, including the Hillsboro,

22 the Palm Beach County conservation area, which is now

23 WCA-1 or Loxahatchee?

24 A. That's what part b of this says.

25 Q. This reference in part c to a feeder canal

1 from the junction of the northeast rim canal to the

2 West Palm Beach Canal, proposing this feeder canal be

3 constructed to the north boundary of the Palm Beach

4 County Conservation Area, does that have meaning to

5 you?

6 Do you know what they are talking about

7 there?

8 A. My recollection, Mr. Smith, is that the

9 alignments of levees and canals changed, and this

10 particular reference may make more sense relative to

11 whatever documents the authors were reviewing at the

12 time.

13 Q. Than it makes to what we know is on the

14 ground today?

15 A. Than it makes today.

16 Q. You can't identify that feeder canal with

17 reference to something that exists today?

18 A. If the purpose for this was to get water

19 from the West Palm Beach Canal into the conservation

20 area to be located in Palm Beach County, then the

21 S-5A pump would serve that purpose, as would the S-5A

22 south structure.

23 Q. In part d, do you agree that the Fish &

24 Wildlife Service appears there to have recommended

25 that dewatering pumps in the agricultural area be

1 operated in such a way that the major portion of the

2 discharge would flow directly into the nearest

3 conservation area?

4 A. That is what statement d appears to say.

5 Q. Would it be a fair summary not only of

6 this, but of the other literature at the time,

7 Dr. Maffei, that Fish & Wildlife Service

8 enthusiastically supported having the agricultural

9 area to be the prime source of its surface water

10 supply?

11 MS. PONZOLI: Object to form. What's fair

12 and what's enthusiastic are highly subjective

13 terms.

14 THE WITNESS: My recollection of the

15 documents include statements by Fish & Wildlife

16 Service personnel that they were concerned with

17 the loss of habitat that would result from

18 construction of the project.

19 Their recommendations in my opinion then

20 were being provided as a result of the

21 development of a project which, while they may

22 not have supported enthusiastically or

23 otherwise, was going to be built.

24 And my belief is that they were attempting

25 to modify the project as much as possible, so

1 that what habitat were left would be most useful

2 and easily managed.

3 BY MR. SMITH:

4 Q. And as part of that strategy, did the Fish

5 & Wildlife Service embrace the idea of receiving its

6 water supply in surface water from the Everglades

7 Agricultural Area?

8 MS. PONZOLI: Again, I'll object to the use

9 of the term embrace as being highly subjective.

10 THE WITNESS: It's my opinion that, based

11 on looking at this page 20 of the exhibit you

12 have given me, that the authors believed that

13 water would be useful for managing and

14 maintaining the area.

15 BY MR. SMITH:

16 Q. Now you have referred to a prior and by

17 your likes a more fundamental observation made by

18 Fish and Wildlife decrying the loss of habitat, and I

19 think that verb was the verb chosen by Fish and

20 Wildlife.

21 Are we referring to the same statement that

22 was included in House Document 643?

23 A. Probably, yes.

24 Q. What habitat in your opinion was Fish and

25 Wildlife referring to as lost, and by what causes?

1 A. My opinion is that individuals from the

2 Fish & Wildlife Service may have been responding to

3 the plan to create an agricultural area of some 700

4 plus thousand acres where at the point in time when

5 this plan was being developed, hundreds of thousands

6 of those acres were still wetlands.

7 Q. So in your opinion, the reference to the

8 loss of habitat was not a reference to the loss of

9 habitat or a radical change of habitat in the

10 conservation areas; is that correct?

11 A. That's correct.

12 Q. Is your interpretation of that just based

13 upon the language employed or do you have some

14 underlying further information that you could help us

15 with?

16 A. My interpretation of that is based on

17 simply, for example, looking at the map that's in the

18 exhibit which you gave me, and which a fairly large

19 agricultural area is delineated, and there were

20 substantial amounts of wetlands in that agricultural

21 area at the time this plan was developed, and those

22 wetlands, that habitat was slated for drainage and

23 development as agricultural lands, if that is a loss

24 of habitat.

25 Q. All right, sir, thank you.

1 Incidentally, that was the map I was

2 looking for when we were speaking about enclosing

3 Water Conservation Number 1.

4 As of the time this report was made, what

5 was the apparent design of the Palm Beach County

6 Water Conservation Area as regards its enclosure? It

7 wasn't to be enclosed on the east, was it?

8 A. My interpretation of this map indicates

9 that the portion of the conservation areas located

10 within Palm Beach County already had existing dikes

11 where improvement will probably be required on their

12 eastern side.

13 Q. And those improvements were then later made

14 to completely sequester Water Conservation Area

15 Number 1, were they not?

16 A. A canal and levee was put up on the eastern

17 side of the conservation areas within Palm Beach

18 County.

19 I don't know the extent to which the dikes

20 that are depicted on this map had already completely

21 sequestered, as you put it, those conservation areas

22 from the east.

23 Q. Well, the effect of the improvement was to

24 assure a complete sequestration; was it not?

25 MS. PONZOLI: I object to form.

1 THE WITNESS: The effect of the canals and

2 levees was to sequester, as you put it, the area

3 known as Water Conservation Area 1 from

4 surrounding areas to a certain degree.

5 BY MR. SMITH:

6 Q. Can you say from your familiarity with

7 records of the Fish & Wildlife Service at the Refuge

8 and otherwise in 1949 that the Fish & Wildlife

9 Service recognized that the primary purposes of the

10 flood control project were to provide for storage of

11 excess rainfall and prevent flood damage, provide for

12 surface and subsurface irrigation for farms, and to

13 maintain adequate head of fresh water, to prevent

14 salt water intrusion?

15 MS. PONZOLI: I'm going to object to form.

16 Federal law was whatever the federal law was,

17 and I don't know that a sub-agency would have

18 the right to differ from whatever the federal

19 law said.

20 MR. SMITH: I object to Ms. Ponzoli's

21 coaching the witness, making speeches on the

22 record.

23 MS. PONZOLI: I'm sorry, Mr. Smith. I am

24 sitting here --

25 MR. SMITH: I have been very patient with

1 you, Ms. Ponzoli.

2 MS. PONZOLI: Mr. Smith, I have been

3 patient with you. You raise your voice

4 continually and I sit here and endure it and you

5 ask unanswerable question after unanswerable

6 question with which Dr. Maffei works and deals,

7 and so I would maintain that this record should

8 show that I have been patient with you.

9 Maybe it's time for a break. We have been

10 here for over two hours.

11 MR. SMITH: Let's answer this question.

12 MS. PONZOLI: Would you read it back,

13 please?

14 (Thereupon, a portion of the record

15 was read by the reporter.)

16 MS. PONZOLI: I would like to reinstate my

17 former objection.

18 MR. SMITH: All right.

19 THE WITNESS: I would say based on my

20 understanding and interpretation of documents

21 from that time period, both of the Fish &

22 Wildlife Service and otherwise, it was clear

23 that there was considerable desire on the part

24 of people in Florida to build a project, to have

25 the Corps, the federal government to build a

1 project to protect them from excess water.

2 I would say that other purposes were

3 designed into the project.

4 BY MR. SMITH:

5 Q. According to the Fish & Wildlife, have you

6 seen contemporaneous records, letters of Fish &

7 Wildlife Service internal to the Fish & Wildlife

8 Service or internal to the Department of the Interior

9 which express a consciousness by the authors of what

10 they deem to be the primary purposes of this project?

11 Have you seen such documents?

12 MS. PONZOLI: Again, I will reinstate my

13 objection that federal law is federal law, and I

14 don't believe that sub-agencies have the right

15 not to recognize it.

16 THE WITNESS: I believe I have seen some

17 documents where the project was discussed.

18 BY MR. SMITH:

19 Q. And was it described as I have just

20 described it to you as having that three-fold

21 purpose?

22 A. I don't particularly recall that at this

23 point in time.

24 Q. Did House Document 643 express that

25 three-fold purpose?

1 A. My recollection is that there were several

2 purposes beyond those.

3 Q. Do you recall, I'm sure you must have

4 looked at the paragraph that we are thinking about,

5 Dr. Maffei, House Document 643, describing what it

6 characterized to be the primary purposes of the

7 project?

8 MS. PONZOLI: Same objection as before.

9 THE WITNESS: It's been quite awhile since

10 I read the house document that you are referring

11 to, and while I remember references to purposes

12 of the project, I don't recall at this point in

13 time --

14 BY MR. SMITH:

15 Q. You don't recall a description of the

16 primary purposes?

17 MS. PONZOLI: Mr. Smith, what is the

18 relevance of all of this? We are litigating a

19 SWIM challenge under Florida law.

20 I really -- you know, we have endured a

21 great deal of this, but you ought to point me

22 somewhere where we are going for why we are

23 going through all of this and what relevance it

24 has to the state law that we are litigating.

25 MR. SMITH: Okay, surely. What this

1 signifies, Ms. Ponzoli, is that the United

2 States through its various agencies, indeed the

3 records of the United States Congress in 1949

4 declared that the primary purposes of the

5 project that was then authorized by Congress was

6 as I have stated on page 2 of the report, and

7 I'll show it to the witness in a moment, with

8 some ancillary advantages that would occur in

9 the area of fish and wildlife.

10 The Fish & Wildlife Service entered into a

11 license and cooperative agreement with the state

12 of Florida whereby the Service was granted the

13 right to use Water Conservation Number 1 for

14 Fish & Wildlife conservation consistent with the

15 primary purposes of the project which were as I

16 have described.

17 The Fish & Wildlife Service itself

18 acknowledged in various documents, including

19 documents exchanged between the Refuge manager

20 and the Everglades Refuge and the regional

21 director in Atlanta, Mr. Silver, in 1949,

22 surveying the advantages and disadvantages of

23 different regional sites for wildlife

24 preservation, acknowledged that the efforts of

25 the Service to establish and operate a wildlife

1 refuge in the Palm Beach County Conservation

2 Area would be subject to the primary purposes as

3 I have described.

4 The Florida law that you speak of makes

5 provision for moderating provisions and for

6 other influences upon the stringency, and locale

7 of regulation is based upon irretrievable

8 manmade conditions such as this project and

9 discharges that were permitted prior to a

10 certain date.

11 The United States is not in a position to

12 deny the purposes that the United States did

13 self-espouse as being the purpose of the project

14 and is not in a position to deny that the

15 subservience of this Loxahatchee Refuge

16 deliberately placed as it was where it was must

17 be taken into account in the regulation under

18 Florida law or any other law on persons who in

19 reliance on this arrangement came in and

20 established farming.

21 MS. PONZOLI: I think our quarrel is with

22 the moderating provisions which you are not

23 really questioning this witness on and those

24 other provisions, Mr. Smith.

25 What the federal law is, the federal law

1 is, and we would maintain that it is supreme,

2 not subservient.

3 MR. SMITH: Okay.

4 THE WITNESS: I want to take a break.

5 MR. SMITH: All right.

6 (Thereupon, a recess was taken.)

7 MR. SMITH: Let's mark as Exhibit B-3 to

8 Dr. Maffei's deposition this copy of the House

9 Document 643.

10 (The document was marked

11 Maffei Exb. No. B-3.)

12 BY MR. SMITH:

13 Q. Turn to page five of that, if you would

14 please, Dr. Maffei.

15 MS. PONZOLI: I would like the court

16 reporter to note that the United States would

17 like copies of all of these exhibits, even

18 though they are already exhibits to Neely's

19 deposition, also attached to this transcript.

20 And may I ask on the record, Mr. Smith, I

21 see the Neely --

22 MR. SMITH: Yes.

23 MS. PONZOLI: -- is here. Have you

24 retrieved the originals or do you have -- you

25 have your copy of Neely that had the original?

1 MR. SMITH: This is the original. I'm

2 using a common original.

3 MS. PONZOLI: All right. That's fine. I

4 just want to understand what's going on so when

5 I get my copy, I'll know.

6 BY MR. SMITH:

7 Q. Would you look at page five? Do you

8 recognize House Document 643, Dr. Maffei?

9 A. Yes.

10 Q. I'm referring to you page five, paragraph

11 number five.

12 MS. PONZOLI: I'm not sure we are with you

13 yet.

14 BY MR. SMITH:

15 Q. Paragraph five on page 2 of the report of

16 the Chief of Engineers, United States Army, which

17 reads "Development of the comprehensive plan of

18 improvement would forward a high degree of flood

19 protection throughout this area. It would provide

20 for removal of excess waters in wet seasons and for

21 their control, storage, and use in maintaining water

22 levels during dry periods. Adequate control of water

23 levels is essential for agricultural use of lands in

24 this area and for maintenance of municipal water

25 supplies. The comprehensive plan would benefit in

1 varying degrees over 2,300,000 acres of land, as well

2 as numerous cities and towns. In addition to those

3 primary purposes, the improvements would reduce the

4 dry season intrusion of salt water into lands and

5 water supplies of coastal areas. Its features would

6 provide substantial benefits from the preservation of

7 fish and wildlife resources."

8 Wasn't it understood by the Fish & Wildlife

9 Service, Dr. Neely, at the time from this language

10 that I have quoted that the primary purposes included

11 the irrigation of agricultural lands and flood

12 control and water storage, and in addition to those

13 primary purposes, had the benefits described for fish

14 and wildlife?

15 MS. PONZOLI: I'm going to object,

16 Mr. Smith. The document says what the document

17 says, and Dr. Maffei is not compelled to

18 speculate on what the Fish & Wildlife Service

19 thought or felt or embraced.

20 This document is a federal document and it

21 says what it says and that is sufficient, and

22 you are certainly welcome to argue it to the

23 court in any manner, shape or form you wish.

24 This witness does not have to speculate on

25 what the Fish & Wildlife Service thought, felt,

1 embraced or in any other manner did at that

2 time. And you can read 100 Fish & Wildlife

3 Service documents to him and we can each time

4 confirm that they say what they say, but it will

5 go no further than that.

6 BY MR. SMITH:

7 Q. Will you answer the question, please, sir?

8 A. First of all, my name is Dr. Maffei, not

9 Dr. Neely.

10 Q. I beg your pardon.

11 A. You misread one word or you said its

12 features would provide substantial benefits. It

13 should say "its features would produce substantial

14 benefits."

15 Q. Produce, all right, sir. With those

16 corrections, can you answer the question?

17 A. The statement does say "In addition to

18 these primary purposes, the improvements would," and

19 then additional benefits, whether you read that to

20 mean additional primary purposes or additional

21 benefits is a matter of interpretation. It says what

22 it says.

23 Q. What's your interpretation?

24 A. My interpretation is that a project was

25 being developed and it was recognized that the

1 impetus for providing the project was, my

2 understanding of the circumstances was largely

3 protection of the urban coast from flood waters and

4 other benefits were built into the project.

5 And among those were creation of an

6 agricultural area, creation of water conservation

7 areas which would provide fish and wildlife benefits

8 and creation of a system that attempted to insure

9 water in portions of the Everglades that were being

10 contemplated at that time as requiring federal

11 protection.

12 Q. From your review of the contemporaneous

13 documents generated by the Fish & Wildlife Service,

14 can you say whether those documents generally reflect

15 that the primary purposes were rather to provide for

16 storage of excess rainfall and prevent flood damage,

17 to provide irrigation for farms and to maintain a

18 head of fresh water and that benefits which were

19 conceived to be the result of those primary purposes

20 included the opportunity to maintain wildlife

21 habitat?

22 MS. PONZOLI: Object to form. It's a

23 compound question and it's a compound question

24 that's been asked repeatedly, and it reflects

25 whatever the reading of the documents that we

1 have discussed repeatedly reflects.

2 I'm not quite sure why it's necessary,

3 Mr. Smith, to have federal witnesses read

4 documents out loud. I think you read them very

5 well.

6 THE WITNESS: I believe I answered this

7 question earlier, and my answer was along the

8 lines that Fish & Wildlife Service personnel

9 understood that this project was going to be

10 built and their efforts were aimed at providing

11 where they could benefits for fish and wildlife

12 and their habitat that may not have been

13 provided otherwise.

14 I believe that any modifications which may

15 have resulted to the project because of comments

16 from Fish & Wildlife Service reflect the fact

17 that preservation of fish and wildlife habitat

18 was an important enough component of the project

19 to effect changes.

20 BY MR. SMITH:

21 Q. But none of those changes were changes to

22 the primary purpose of storing water, providing for

23 irrigation discharged from the agricultural area and

24 maintaining municipal water supplies, were they?

25 A. I don't know the extent to which those

1 changes impacted the purposes which you describe as

2 primary.

3 MR. SMITH: Let me have this marked for

4 identification as Exhibit C to Dr. Maffei's

5 deposition. It's a series of documents

6 previously exhibited with Mr. Neely's deposition

7 as Composite Exhibit C, and I'm referring to a

8 letter from Refuge Manager, Everglades Refuge,

9 Gerald F. Baker, to the Regional Director of the

10 Fish & Wildlife Service in Atlanta dated

11 October 27, 1949, re proposed Loxahatchee

12 National Wildlife Refuge, Fish & Wildlife

13 Service document number 128, beginning at Bates

14 number 10147 and continuing to 10152.

15 (The document was marked

16 Maffei Exb. No. C.)

17 BY MR. SMITH:

18 Q. I call your attention particularly to

19 page 2 in which Mr. Baker states what he recites to

20 be the three purposes of the retention units and the

21 further statement, "Development and management

22 measures should be designed to provide the most

23 favorable wildlife habitat conditions that will be

24 possible without conflicting with the primary

25 purposes of the proposed refuge and other water

1 retention areas. I believe this can be done and will

2 justify fully establishment of a National Wildlife

3 Refuge on Retention Area No. 1."

4 MS. PONZOLI: Do you want us to read it?

5 MR. SMITH: I'm calling his attention to

6 what I just read and I want to ask him a

7 question about it after he has read it himself.

8 BY MR. SMITH:

9 Q. My question, Dr. Maffei --

10 MS. PONZOLI: Wait, give him time to

11 finish, Mr. Smith, please.

12 Mr. Smith, I would like the record to

13 reflect that I don't necessarily question that

14 these aren't authentic copies of federal

15 documents, but I don't necessarily concede they

16 are either. I am trying to aid you in your

17 efforts to ask for records custodians,

18 et cetera.

19 Did these records come from our files? I

20 will assume for your purposes in these

21 depositions that they did. I have no personal

22 knowledge of it, so I have to go on that

23 assumption.

24 MR. SMITH: You have no personal knowledge

25 that you produced these records?

1 MS. PONZOLI: No, sir, I do not, no, sir.

2 From the millions of documents that I have

3 produced to you and the other gentlemen at this

4 table, I don't think there is any human being

5 who could have personal knowledge that they had

6 produced those documents from five federal

7 agencies.

8 No, sir, I have no personal knowledge, but

9 I will give you the benefit that these are

10 accurate records, but I want the record to

11 reflect that I do not know that for a fact, and

12 if they are not, our answers were based on an

13 assumption that you had produced accurate

14 records.

15 BY MR. SMITH:

16 Q. The question is does that appear to be a

17 communication such as I have described from the

18 Refuge management of the Everglades Refuge to the

19 director in Atlanta of your agency?

20 MS. PONZOLI: Is that what it says,

21 Dr. Maffei?

22 THE WITNESS: It says to Regional Director

23 in Atlanta from Refuge Manager, Everglades

24 Refuge, subject, Proposed Loxahatchee National

25 Wildlife Refuge, dated 10-27-49.

1 That's what it says.

2 BY MR. SMITH:

3 Q. Does that appear to be a document of the

4 Fish & Wildlife Service?

5 A. It appears to be.

6 Q. Has it got a familiar letterhead?

7 A. Familiar? It says Office Memorandum,

8 United States Government. We don't have any

9 letterhead that has that style of title, although we

10 have letterheads that have some other wording.

11 Q. Do you have any of these 1949 documents at

12 the Loxahatchee Refuge?

13 MS. PONZOLI: Unless they have copies of

14 Mr. Neely's deposition, they must have these

15 documents.

16 THE WITNESS: We have copies of these

17 documents which it's my recollection were

18 obtained subsequent to the production in which

19 Bates number FSW-00000128 would have been

20 affixed.

21 It's possible we have other copies of these

22 documents, but my awareness of these documents

23 followed the production in Atlanta of these

24 documents.

1 BY MR. SMITH:

2 Q. Did you look at these documents in Atlanta?

3 A. No, sir, I did not.

4 Q. Very well. Have you any documents, sir,

5 from 1949 in your possession at Loxahatchee?

6 MS. PONZOLI: Other than the ones you have

7 produced?

8 MR. SMITH: These are the ones you have

9 produced.

10 BY MR. SMITH:

11 Q. When you came to the Refuge and took charge

12 of the biological aspects of the Refuge operation,

13 did you have a file of historic documents relating to

14 the Refuge?

15 A. There is a large number of documents that

16 predated my arrival at the Refuge.

17 Q. All right. And before this production in

18 which this Bates number was attached to this

19 document, did you ever conduct an inventory of those

20 documents?

21 A. We produced documents prior to the

22 production of these documents in Atlanta. I don't

23 know that what we did would be considered an

24 inventory.

25 Q. All right. My question is does this

1 document reflect a consciousness of the author of it

2 at the time in your opinion that the primary purposes

3 were as described in that paragraph of the document

4 which I have read?

5 MS. PONZOLI: Object to form. I don't

6 think this witness is called to comment on the

7 consciousness of authors in 1949.

8 You can answer if you wish, Dr. Maffei.

9 I consider this whole line of questioning

10 very close, if not harassment, Mr. Smith.

11 THE WITNESS: My opinion is that the author

12 believes that there were reasons for the

13 construction of the project and that operation

14 of the project could occur without conflict with

15 management of the areas of wildlife habitat.

16 BY MR. SMITH:

17 Q. What he says was that the management of the

18 areas could be carried on without conflict with the

19 primary purposes, did he not?

20 MS. PONZOLI: He said what he said,

21 Mr. Smith. We have been back and forth on this.

22 THE WITNESS: Those are the words.

23 BY MR. SMITH:

24 Q. All right. May I have the exhibit a

25 moment, please, sir?

1 Does the name Walter Gresh mean anything to

2 you?

3 A. Walter who?

4 Q. Gresh.

5 A. It's familiar. Doesn't have any particular

6 meaning to me other than it's familiar.

7 Q. I refer you to the last document in this

8 series, which is signed by Walter A. Gresh, Acting

9 Regional Director. This is Fish & Wildlife Service

10 document number 92, Department of the Interior, Fish

11 & Wildlife Service, representing a proposal for the

12 establishment of a National Wildlife Refuge in

13 connection with the project.

14 I ask you to refer to it sufficient to

15 acclimate yourself to it and identify it was

16 apparently a document of the Fish & Wildlife Service

17 produced by the Fish & Wildlife Service, prepared by

18 Dr. Walter Gresh, Acting Regional Director, on

19 April 5, 1950.

20 MS. PONZOLI: May I hear that question

21 again, please? I think it has some improper

22 predicates in it, but I'm not sure. Let me just

23 hear it again.

24 (Thereupon, a portion of the record

25 was read by the reporter.)

1 MS. PONZOLI: I'm going to object that

2 unless Dr. Maffei indicates to us he has

3 knowledge that this document is identified as

4 the document you have said and was produced and

5 I guess written by Dr. Gresh and has personal

6 knowledge of Mr. Gresh's handwriting, I don't

7 think this witness is competent to testify as to

8 the -- I guess the authenticity of the document

9 is what you are trying to use it for.

10 Now if he does have that personal

11 knowledge, he certainly is welcome to tell you

12 that. If he doesn't, I object to the entire

13 question as compound, improper and containing

14 predicates not in this record.

15 BY MR. SMITH:

16 Q. Do you recognize this as Dr. Gresh's report

17 representing the proposal for the establishment of

18 the Loxahatchee Wildlife Refuge?

19 A. I recognize this document as being one

20 which we currently have at the Refuge that says what

21 it says.

22 Q. Do you have any doubt, Dr. Maffei, that

23 this is a copy of an authentic expression by

24 Dr. Walter Gresh dated as of the date it's indicated

25 there on the subject of the establishment of the

1 Refuge of which you are now an officer?

2 MS. PONZOLI: Object to form.

3 THE WITNESS: I have no basis for doubting

4 that.

5 BY MR. SMITH:

6 Q. All right. Well, do you doubt it?

7 A. I have no basis.

8 MS. PONZOLI: I don't think what he doubts

9 or believes is relevant here, Mr. Smith. This

10 is my whole objection to this entire line. This

11 is probably about the third day I have spent

12 doing this with you.

13 You have those documents. These people can

14 only say yes, they come from their records, or

15 they don't come from their records, and that's

16 the extent of it.

17 And you are free to argue whatever you wish

18 to argue from them, but that's the extent of

19 what you can obtain from any live witness now on

20 these records.

21 MR. SMITH: I think I am entitled to ask

22 the witness for his familiarity of the records

23 of the Wildlife Service on the subject of which

24 he is an expert.

1 BY MR. SMITH:

2 Q. So that's what I'm asking you. You say you

3 have no reason for doubting it.

4 Do you doubt the authenticity of this

5 document?

6 A. It's my understanding that this is a copy

7 of a document that was produced in Atlanta by the

8 Fish & Wildlife Service, and I am not sufficiently

9 familiar with any of those documents to be able to

10 read them and say yes, this is what the original copy

11 said.

12 I have no reason to doubt that this is a

13 copy of the document. I don't doubt it as I sit

14 here.

15 Q. Do you doubt as you sit here that Dr. Gresh

16 so expressed himself in 1950 to the director of the

17 appropriate division of the Department of the

18 Interior?

19 A. I don't doubt that Walter A. Gresh signed

20 this letter. I have no knowledge if he wrote it or

21 not.

22 Q. Look at page 3 of the letter, please, Bates

23 number 10292.

24 A. Earlier you asked me to read it and

25 acclimate myself to it. Do you want me to do that or

1 just go to page 3?

2 Q. Go to page 3.

3 A. Okay.

4 Q. I call your attention to the listing of the

5 primary functions or purposes of the water retention

6 areas being "to prevent flood damage by providing

7 storage for excess rainfall, to provide surface and

8 subsurface irrigation water for farms, orchards, and

9 grazing lands during winter months, and to maintain

10 an adequate head of fresh water in the porous rock

11 underlying the Everglades basin to prevent

12 infiltration of salt," et cetera. And Dr. Gresh

13 there refers to these as the primary objectives, the

14 primary functions on page 3 and the primary

15 objectives on page 4, "to which any auxiliary land

16 use on these areas would be subject."

17 I'm asking you whether that language

18 conveys to you a sense of the author that the

19 wildlife Refuge that he was proposing be established

20 would be an auxiliary land use subject to those

21 primary objectives.

22 MS. PONZOLI: Object to form.

23 Dr. Maffei, you do not have to have

24 opinions on all these really rather silly

25 questions, so I mean I want you to understand

1 you do have some rights here.

2 MR. SMITH: If he has no opinion, he may

3 certainly say that.

4 THE WITNESS: Could you read back the

5 question, please?

6 (Thereupon, a portion of the record

7 was read by the reporter.)

8 THE WITNESS: He refers to management of

9 existing fish and wildlife resources on these

10 areas as a complementary land use.

11 That seems a little different than

12 auxiliary to me. My opinion is you can read it

13 and interpret it based on the wording that's

14 there.

15 BY MR. SMITH:

16 Q. Did the records of the Fish & Wildlife

17 Service contemporaneous with the creation of the

18 Loxahatchee Refuge uniformly acknowledge that the

19 uses of the retention areas would be dictated by the

20 three primary areas that were, primary objectives

21 that were recited here by Dr. Gresh?

22 MS. PONZOLI: Object to the use of the word

23 uniformly.

24 THE WITNESS: I don't know that I am

25 adequately familiar with the records of the Fish

1 & Wildlife Service at this period of time

2 relative to what they reflected or not.

3 I don't know that I have seen all the

4 records that may have been generated.

5 BY MR. SMITH:

6 Q. Of those that you have seen, have you seen

7 any that were inconsistent with the idea expressed

8 here; namely, that the uses of the retention areas

9 will be dictated by the three primary objectives that

10 Mr. Gresh recited?

11 MS. PONZOLI: Object to form.

12 THE WITNESS: My opinion of the records

13 that I have seen indicated that service

14 personnel did not believe there was a conflict

15 between managing these areas for fish and

16 wildlife habitat and providing what are listed

17 as primary objectives by authors.

18 It's my opinion that to the extent that

19 they believed these areas would remain as

20 wetlands and continue to provide habitat values

21 for fish and wildlife, they believed that

22 establishment of a Refuge Water Conservation

23 Area-1 would not be inconsistent with those.

24 BY MR. SMITH:

25 Q. What was the physical condition of the

1 Refuge at the time Mr. Gresh wrote this letter?

2 A. Based on my review of documents generated

3 around this time and prior to it, my understanding is

4 that the Refuge was a marsh.

5 Q. Look at page 3, referring to the first full

6 paragraph, the language "The present trend in the

7 area is toward lower average water stages accompanied

8 by replacement of aquatic vegetation by sawgrass,

9 shrinkage of lakes, and increase in low hammocks and

10 tree islands."

11 Is that a fair statement of the physical

12 condition of the Loxahatchee area in 1950?

13 A. Other than I consider sawgrass to be an

14 aquatic vegetation, this description is consistent

15 with my understanding of what was happening in the

16 area at the time.

17 Q. It's plain that Mr. Gresh considered

18 sawgrass was not an aquatic vegetation; isn't that

19 so?

20 A. Mr. Gresh or whoever wrote that statement.

21 Q. Do you consider sawgrass as an aquatic

22 vegetation?

23 A. It's a marsh plant.

24 Q. No, I asked is it aquatic vegetation?

25 A. I believe it's an aquatic vegetation of

1 wetland species, a wetland species.

2 Q. Is it traditionally, sawgrass traditionally

3 classified as aquatic vegetation among your

4 professional peers?

5 A. Sawgrass is described as emergent marsh

6 vegetation. Marshes are aquatic communities.

7 Q. So your answer to my question is yes?

8 A. I believe, the way I interpret the

9 classifications, is yes.

10 Q. At any rate, was the present trend in 1950

11 to be that sawgrass was replacing some other species

12 that Mr. Gresh at least thought were aquatic

13 vegetation?

14 A. That's what appears to be happening and

15 that's consistent with my opinions of the state of

16 the area now known as Loxahatchee Fish & Wildlife

17 Refuge at that point in time.

18 Q. Was there as a consequence of that an

19 inbalance in the flora of the Refuge?

20 A. Are we talking imbalance as refers to

21 caused by introduction of nutrients or are we talking

22 imbalance as refers to changes in community types?

23 Q. Answer it both ways.

24 A. I don't see any evidence of imbalance as a

25 result of introduction of nutrients in surface

1 drainage.

2 It appears species shifts were occurring at

3 the time. I don't have enough information here and I

4 don't know what one to look at to discuss imbalance

5 in the natural system. What this looks like to me is

6 what is referred to as succession.

7 Q. Is it your testimony that succession, when

8 it results in one species invading and achieving

9 dominance over another, is not imbalance in any

10 derogatory sense?

11 MS. PONZOLI: Object to form.

12 THE WITNESS: The presence or absence of a

13 particular species may not change the

14 characteristics of the ecosystem to the extent

15 that imbalance would have a derogatory sense.

16 BY MR. SMITH:

17 Q. Is it plain that from the text and context

18 here of this page 3 of Mr. Gresh's observation that

19 he considered that the present trend toward lower

20 average water stages accompanied by the replacement

21 of aquatic vegetation by sawgrass, shrinkage of

22 lakes, increase in low hammocks and tree islands

23 represented a detrimental effect upon the Refuge?

24 MS. PONZOLI: Object to form. Again, I do

25 not believe that Dr. Maffei is called upon to

1 interpret Mr. Gresh's comments or to decide what

2 Mr. Gresh meant. The words stand on the page as

3 Mr. Gresh left them.

4 THE WITNESS: It appears to me that

5 Mr. Gresh believed that as the efforts of

6 draining the area prior to the time of this

7 writing had reduced average water stages, that

8 changes were occurring, and he believed that

9 construction of the project, the comprehensive

10 engineering plan as he refers to it, could

11 reverse the trend.

12 BY MR. SMITH:

13 Q. So the trend was detrimental?

14 MS. PONZOLI: You are asking for

15 Dr. Mafffei's interpretation of Mr. Gresh's

16 words, was it detrimental in Mr. Gresh's mind?

17 BY MR. SMITH:

18 Q. Was this an expression at the Fish &

19 Wildlife Service that the trend described by

20 Mr. Gresh was detrimental?

21 MS. PONZOLI: That's a whole different

22 question.

23 MR. SMITH: That's a different one you

24 stated.

25 MS. PONZOLI: No, I was asking in my

1 question was your question so I could

2 understand, but if you are going to ask

3 Dr. Maffei to sit here and speak almost in a

4 policy manner on behalf of Fish & Wildlife

5 Service, then I will have to instruct him not to

6 answer, because he cannot speak in a policy

7 manner for Fish & Wildlife Service. He appears

8 as a scientist on their behalf and an expert

9 witness in this proceeding, but it's very

10 difficult to obtain policy speakers from the

11 federal government.

12 So I will ask that you not frame your

13 questions in that particular manner.

14 THE WITNESS: I don't know if this was a

15 policy expression on the Fish & Wildlife

16 Service.

17 BY MR. SMITH:

18 Q. You are referring to Fish & Wildlife

19 Service document number 92 which was forwarded under

20 date of April 7, 1950 by Mr. Gresh to the director in

21 Washington? Cover letter is immediately preceding

22 it, Bates number 10181.

23 A. I am referring to the exhibit we are

24 looking at.

25 Q. Yes.

1 A. Yes.

2 Q. I have the sense -- correct me if I'm wrong --

3 that your opinion in the capacity in which you are

4 professionally qualified is that there is no such

5 thing as an imbalance in natural flora and fauna in

6 the Refuge except as may be caused by farming

7 irrigation discharges.

8 Is that correct?

9 A. I would say that when a term such as

10 imbalance takes on a legal meaning, some of the

11 biological meaning then becomes distorted, if the

12 term ever had biological meaning prior to that.

13 Ecologists have long studied succession.

14 Ecologists have long been aware of the changes in

15 species deposition numbers and diversity and

16 generally describe them as such.

17 Imbalance is a term that means a wide

18 variety of things, and I think using other

19 descriptors or measures of what's happening in an

20 environment is appropriate.

21 Q. Was sawgrass a dominant vegetative feature

22 of the area when the Loxahatchee Refuge was

23 established?

24 A. Sawgrass was apparently a feature of the

25 area when it was established.

1 Q. Was it a dominant feature?

2 A. I believe that at some portions of the area

3 it made up a significant component of the plant

4 communities.

5 Q. To the extent that it had become a

6 significant portion of the plant community, was that

7 attributable to the drought conditions that prevailed

8 in the ten years or so before it was established?

9 A. That appears to be the interpretation that

10 could be drawn from the document we have been talking

11 about.

12 Q. Are you aware of any documents

13 contradicting that developmental feature of

14 Loxahatchee at the time that it was established?

15 MS. PONZOLI: Object to the form.

16 THE WITNESS: Am I aware of any documents

17 which indicate that sawgrass was not --

18 BY MR. SMITH:

19 Q. Not the result of the general drying

20 conditions that had taken place in the years

21 immediately before the Loxahatchee was established.

22 A. Did you say dominant feature?

23 MS. PONZOLI: Do you want to hear it back?

24 (Thereupon, a portion of the record

25 was read by the reporter.)

1 THE WITNESS: The map produced by Dr. Davis

2 on or around 1943 which was developed from data

3 acquired during the thirties I interpret to show

4 fairly substantial areas of sawgrass in the

5 portions of the Everglades where Loxahatchee now

6 exists.

7 MR. SMITH: All right. I show you

8 Exhibit 24 for identification and ask that it be

9 marked for identification, which is the Davis

10 map marked similarly in the Neely deposition.

11 It was marked out of sequence with the letters.

12 (The document was marked

13 Maffei Exb. No. 24.)

14 BY MR. SMITH:

15 Q. Do you recognize this as a copy of the

16 Davis map, Dr. Maffei?

17 A. It appears to be a copy of the Davis map.

18 Q. Referring to the legend in the Davis map,

19 what is the principal vegetative characteristic of

20 what is now the Loxahatchee at that time?

21 A. Sloughs, ponds and lakes. I believe that's

22 the legend that fits.

23 Q. Do you agree or disagree that that

24 accurately portrays the conditions at the Loxahatchee

25 at the time representation was made?

1 MS. PONZOLI: Object to form. I think we

2 had this same fight in Mr. Neely's deposition in

3 regards to what's accurate or not about this

4 map.

5 You can frame the question a different way

6 and I'll have no objection, Mr. Smith, but you

7 always want us to say this map is accurate.

8 MR. SMITH: Well, I'm asking the witness.

9 BY MR. SMITH:

10 Q. Is the map accurate as of the time it was

11 published?

12 MS. PONZOLI: Then I will voice the same

13 objections I had last time. He has no way of

14 knowing if it's accurate.

15 MR. SMITH: I think he does.

16 MS. PONZOLI: Oh, interesting. I don't

17 think he was born until after 1943.

18 THE WITNESS: The map is consistent with my

19 general understanding of the area.

20 BY MR. SMITH:

21 Q. Now your last prior statement by which we

22 were introduced to this map was that there are some

23 areas on the western perimeter which are marked

24 sawgrass and myrtle that you consider to be within

25 the present boundaries of the Loxahatchee; is that

1 correct?

2 A. That's generally correct.

3 Q. To the extent that the predominant

4 characteristic at the time John Davis portrayed this

5 area was sloughs, ponds and lakes, he was not

6 intending to suggest that sawgrass was a significant

7 feature of it, was he?

8 MS. PONZOLI: Object to form.

9 THE WITNESS: Apparently not.

10 BY MR. SMITH:

11 Q. Do you acknowledge that he had another

12 legend code to depict either dense sawgrass areas or

13 moderate to slight sawgrass areas in the Everglades?

14 A. I see four different legends which are

15 identified as sawgrass, followed by some information

16 parenthetically.

17 Q. So Dr. Davis evidently had a classification

18 purpose which permitted him to represent four

19 different gradations of sawgrass presence, and he did

20 not use that except in the case of sawgrass marshes

21 with wax myrtle thickets on the western perimeter of

22 the Loxahatchee; isn't that correct?

23 A. That's correct.

24 Q. Now you are familiar with Dr. Davis' book

25 The Geological Bulletin Number 25?

1 A. I have seen it.

2 Q. Is it authoritative?

3 MS. PONZOLI: Object to form.

4 THE WITNESS: It is a useful reference.

5 BY MR. SMITH:

6 Q. Is it generally accepted among

7 knowledgeable experts in your field that the general

8 trend in consequence of these canals being dug in the

9 early 20th century was to de