162
1 Division of Administrative Hearings
2 Department of Administration, State of Florida
3
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 II
DEPOSITION OF MARK D. MAFFEI, Ph.D.
20
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 - - -
Tuesday, March 22, 1994
24 319 Clematis Street, Suite 500
West Palm Beach, Florida 33401
25 9:05 a.m. - 5:00 o'clock p.m.
163
1 APPEARANCES:
2 On behalf of the Petitioners Florida Sugar
Cane League, Inc., United States Sugar Corp.:
3
Earl, Blank, Kavanaugh & Stotts, P.A.
4 One Biscayne Tower, Suite 3636
Two South Biscayne Boulevard
5 Miami, Florida 33131
By: JONATHAN GAINES, ESQUIRE
6
On behalf of Sugar Cane Growers:
7
Hopping, Boyd, Green & Sams
8 123 South Calhoun Street
Tallahassee, Florida 32301
9 By: ROBERT P. SMITH, ESQUIRE
and
10 JEFFREY J. WARD, ESQUIRE
In-House Counsel
11 Sugar Cane Growers
12 On behalf of the Intervenor United States:
13 U.S. Attorney's Office
155 South Miami Avenue
14 Suite 600
Miami, Florida 33130
15 By: SUZAN HILL PONZOLI, ESQUIRE
16 I N D E X
17 - - -
18 WITNESS: DIRECT CROSS REDIRECT RECROSS
19 Mark D. Maffei, Ph.D.
20 By Mr. Smith 165
164
1 - - -
2 E X H I B I T S
3 - - -
4
NUMBER PAGE DESCRIPTION
5
Maffei Exhibit G 205 Fish & Wildlife Report for
6 Inclusion in Corps of Engineers
Design Memorandum Part I, 1958
7
Maffei Exhibit B-2 251 Letter from Secretary Warne to
8 General Wheeler, 4-13-48
9 Maffei Exhibit S 251 Work Order 32
10 Maffei Exhibit Q 296 Surface Water Improvement and
and Management Plan for Everglades,
11 September 1990
12 Maffei Exhibit K 307 Handwritten notes, May 21, 1991
and May 23, 1991
13
165
1 P R O C E E D I N G S
2 - - -
3 Thereupon,
4 Mark D. Maffei, Ph.D.,
5 having been by the undersigned Notary Public
6 previously sworn, was examined and testified as
7 follows:
8 DIRECT (Mark D. Maffei, Ph.D.)
9 BY MR. SMITH:
10 Q. Dr. Maffei, yesterday you mentioned the
11 incidence of the rotten egg smell, hydrogen sulfide.
12 Would you tell us in greater detail where
13 you encountered that and under what circumstances?
14 I believe you said it was related to
15 disturbing the soil, you could disturb the soil and
16 provoke that smell.
17 Could you tell us some more about that?
18 A. Typically I travel through the marsh in an
19 airboat, and apparently the airboat causes a wave of
20 some nature in the water, and frequently we'll see
21 gas, bubbles coming from, rising from the substrate
22 as the boat moves into an area.
23 Q. That's in the wake of the boat?
24 A. Not in the wake, preceding the boat. It's
25 probably in the wake also, but I don't see that.
166
1 What I see is what's happening in front of the boat.
2 Q. And is that, do you infer that it's caused
3 by the rippling that precedes the boat or is this
4 something that's occurring and you just come upon it?
5 A. No, I infer that the pressure that is
6 created in front of the boat as the boat is pushing
7 the water is creating some force on the soil. And I
8 don't know if it takes much to cause the gas to be
9 released from the soil, but that's what I see.
10 Q. And does this just continue as long as the
11 boat is moving in the area or does it stop and go?
12 A. No, it doesn't continue as long as the boat
13 is moving. When the boat is at speed, I don't see
14 that.
15 Q. When the boat is at what?
16 A. Speed, up on a plane, I don't see that at
17 at all.
18 When I see it is when we are moving into
19 certain types of areas, for example, where the
20 vegetation over the peat is not dense. I most
21 commonly notice if I am moving into an area where a
22 portion of the peat has broken loose and created a
23 small island and there will be a depression, and when
24 I'm bringing the boat at slow speed into the deeper
25 water area created by this phenomenon, bubbles will
167
1 come up.
2 I don't think I would say it occurs every
3 place in the marsh, but with some frequency. In some
4 instances there is an odor associated with that.
5 I have on occasion also pulled up handfuls
6 of peat and smelled it.
7 Q. Out of undisturbed areas?
8 A. Well, I was there in a boat.
9 Q. In an area where you had noticed the
10 bubbles?
11 A. Sometimes when I didn't see any bubbles.
12 Q. All right. You just reached down through
13 the water, the water is shallow?
14 A. Correct, shallow, deep, whatever it was.
15 Sometimes it's been deep, deep enough that --
16 Q. You get out of the boat?
17 A. Get out of the boat.
18 Q. And just reach down and you are touching
19 the apparently undisturbed peat substrate?
20 A. I am touching the peat substrate.
21 Whether -- disturbed by what?
22 Q. It hadn't broken loose?
23 A. Correct.
24 Q. There is no cavity there?
25 A. Correct.
168
1 Q. And you smelled this odor that you have
2 described as --
3 A. On some occasions, yes.
4 Q. On some occasions. And you have had that
5 experience frequently?
6 A. I had that experience on more than one
7 occasion.
8 Q. Well, can you tell me how many times you
9 have encountered it? Half a dozen? Hundreds?
10 A. How many times I have smelled sulfide odor?
11 Q. Yes.
12 MS. PONZOLI: Versus how many times he has
13 smelled peat?
14 MR. SMITH: No, how many times he has
15 smelled the odor, under what other
16 circumstances, either by grabbing up a handful
17 of peat or by consequence of bubbles or
18 otherwise.
19 THE WITNESS: Well, pulling up samples of
20 peat, various locations. I have been out there
21 so many times and done this, it's -- I just
22 don't have a good quantification.
23 BY MR. SMITH:
24 Q. But you would have a sense if it happened
25 every time or if it happened more frequently than
169
1 not. That's all I'm asking you.
2 Is this odor a rather constant companion as
3 you go through?
4 A. No, no. It's not a constant odor. It
5 doesn't happen every place I stop or every place I
6 travel or every place I sample the peat, reach down
7 and take a handful.
8 Q. Well, now you didn't say, but I assume that
9 on these occasions when the boat is not on plane but
10 going at a slow speed and you see the bubbles out
11 front, a consequence of you presume the pressure of
12 the boat acting upon the substrate, has that been
13 invariably when a piece of the peat has, as you say,
14 broken loose and there is a hole with exposed, newly
15 exposed peat, or have you seen that when you had no
16 evidence of any such modification of the substrate?
17 A. I can't say for sure right now that I have
18 not seen it in other places.
19 What I would tell you is that if I wanted
20 to demonstrate the phenomena to you, I would look for
21 a place where the peat had broken loose and I would
22 be confident that I could demonstrate it to you in
23 that location. So that's where I most clearly
24 associate the phenomenon.
25 Q. All right. Have you kept any kind of
170
1 records of where in the Refuge this has occurred?
2 A. No, sir.
3 Q. No map, no written record, no diary of any
4 kind?
5 A. No, sir.
6 Q. Do you have a sense as you sit here today
7 that it has occurred in one area more than another?
8 A. The bubbles?
9 Q. However you encounter it, either the
10 bubbles or the smell or --
11 A. Let me clarify. Just because I see the
12 bubbles doesn't mean that I get a sulfide odor with
13 it.
14 Q. I was going to ask you that. But sometimes
15 you do and sometimes you don't?
16 A. In some locations I do and in some
17 locations I don't.
18 Q. Well, do you take the bubbles to indicate
19 from something you have read or your own experience
20 or something somebody has told you that bubbles
21 indicate a gas?
22 A. Bubbles indicate a gas, most definitely.
23 Q. And do you take it that the bubbles
24 indicate hydrogen sulfide gas?
25 A. No, sir, I don't.
171
1 Q. But the smell indicates hydrogen sulfide
2 gas; is that correct?
3 A. If hydrogen sulfide odor, rotten egg odor
4 occurs after stopping at the location, I assume that
5 the bubbles have brought that particular gas to the
6 surface.
7 Q. So if you are driving along at a slow speed
8 in the conditions that you have stated and you see
9 the bubbles out front, if you turn off the gas and
10 just cruise to a halt, you will frequently,
11 invariably or sometimes smell rotten egg?
12 MS. PONZOLI: It's been asked and answered.
13 THE WITNESS: Sometimes, not frequently,
14 sometimes I will smell that odor.
15 BY MR. SMITH:
16 Q. Okay, associated with the bubbles?
17 A. Whether or not I see bubbles, sometimes I
18 smell the odor when I turn off the boat.
19 Q. Okay. Now, you recognize it as hydrogen
20 sulfide smell?
21 A. I recognize it as what's typically known as
22 rotten egg odor and I recognize that as a hydrogen
23 sulfide odor.
24 Q. And is that just by your prior scientific
25 training and life's experience or is it somebody,
172
1 some other scientific peer told you this or verified
2 this to you?
3 A. Well, prior to my arriving in South
4 Florida, I knew what hydrogen sulfide smelled like,
5 and I am not aware of anybody working in the
6 Everglades who has challenged my interpretation of
7 the odor.
8 Q. And what does hydrogen sulfide -- it is a
9 gas by definition, hydrogen sulfide? Is it a liquid
10 also?
11 A. I don't believe hydrogen sulfide is a gas
12 or a liquid by definition.
13 Q. What is it by definition?
14 A. It's a chemical compound.
15 Q. Okay. And explain the mechanism by which
16 the chemical compound gives off this characteristic
17 odor.
18 A. Hydrogen sulfide in my opinion does not
19 give off an odor. Our olfactory senses provide an
20 interpretation, the presence of hydrogen sulfide
21 molecules that we interpret as being the odor
22 associated with that molecule.
23 Q. Why would a disturbance or a pressure upon
24 the peat cause our senses to pick up the odor
25 associated with hydrogen sulfide?
173
1 A. My assumption is that the H2S is in the
2 soil, the peat or whatever form the substrate at that
3 location is taking, and the disturbance by the boat
4 causes a release of some of that in the form of a
5 gas, which, when it exits the water, we can smell.
6 Q. Okay. Now what is in your opinion the
7 cause of the hydrogen sulfide element being in the
8 peat?
9 A. My understanding is that under anaerobic
10 conditions there are some organisms which can use
11 sulfur as electron septor for respiration, and just
12 as when we respire, we change CO2 -- excuse me, we
13 respire oxygen into carbon dioxide, certain organisms
14 can respire using sulfur to create hydrogen sulfide.
15 Q. Your understanding is this phenomenon
16 occurs under anaerobic conditions?
17 A. It's my understanding that generally
18 anaerobic conditions are the conditions under which
19 this occurs most frequently.
20 Q. And what are anaerobic conditions?
21 A. Anaerobic conditions are conditions where
22 oxygen is lacking.
23 Q. And how is that measured objectively?
24 A. How is the presence or absence of oxygen
25 measured?
174
1 Q. Yes.
2 A. In the water column.
3 Q. Is this the reference that you made
4 yesterday to dissolved oxygen?
5 A. That's correct, in the water column it's
6 measured as dissolved oxygen.
7 Q. So you would take a sample of water in the
8 laboratory and you would be able to determine the
9 relative presence or absence of dissolved oxygen?
10 A. It can be done that way.
11 Q. How is it typically done?
12 A. How is dissolved oxygen determination
13 typically done?
14 Q. Yes.
15 A. Well, I'm not sure how it's typically done.
16 Q. How do you typically do it?
17 A. When I'm measuring dissolved oxygen in the
18 marsh, I take a device with me that can measure
19 dissolved oxygen in the water column. I have not
20 done determinations of oxygen content of the soil.
21 Q. I didn't get the last --
22 A. I have not done determinations of oxygen
23 content in the soil.
24 Q. This device that measures it in the water
25 column, is that just something that you can put over
175
1 the side of the boat and it will in effect, like a
2 thermometer measures temperature, give you a read-out
3 of dissolved oxygen?
4 A. Something like that, yes.
5 Q. Something like that. But it's an immediate
6 reading of dissolved oxygen, isn't it?
7 (Thereupon, there was an interruption
8 in the proceedings.)
9 THE WITNESS: It can give a relatively
10 immediate reading as to what the dissolved
11 oxygen levels are.
12 BY MR. SMITH:
13 Q. Have you measured dissolved oxygen in the
14 water column at various places throughout the marsh?
15 A. Yes, sir.
16 Q. And what have you found with respect to
17 dissolved oxygen presence in the water column in the,
18 at or near the interior marsh stations?
19 A. I have noticed that it varies considerably
20 from point to point and from time to time.
21 Q. And can you associate it with particular
22 phenomena that you observe about water supply or
23 pumping activity or rainfall or any phenomenon that
24 you observed?
25 A. Well, the most, the events that stand out
176
1 the most for me in response to that question are
2 various fish kills which have been reported to us.
3 These fish kills which occur in the canal, in the
4 locations within the canals have generally been
5 associated with pumping events.
6 On some of those occasions when I have
7 responded to reports of fish kills, I have taken DO
8 measurements. The DO measurements on these occasions
9 have generally indicated low dissolved oxygen in the
10 canals at the time or near the time of the fish
11 kills.
12 We have generally concluded that the
13 pumping event coupled with perhaps other
14 environmental parameters such as temperature of the
15 water has resulted in low dissolved oxygen. The
16 pumping events stir up a lot of organic material,
17 creating a high biological oxygen demand which will
18 bring dissolved oxygen levels down.
19 Q. Have you recorded in any systematic way
20 these fish kills?
21 A. For at least some of the fish kills, and by
22 no means all of them, I have written summaries for
23 the project leader indicating what I found and what I
24 believed to be the cause of the fish mortality.
25 Q. Have you made those reports to -- is it
177
1 Mr. Neely?
2 A. Yes, sir.
3 Q. More frequently than you have omitted them?
4 A. Probably not. I only recall doing one or
5 two or maybe three such reports. That was early in
6 my tenure at the Refuge.
7 Q. Is there any particular reason why you
8 discontinued making reports?
9 A. Mainly because I don't have the amount of
10 time available to spend on those types of things that
11 I had when I originally arrived at the Refuge and was
12 still learning what my job was.
13 Q. How many such fish kills do you think you
14 have investigated in the way that you have described
15 over the course of the years that you have been at
16 the Refuge?
17 A. Oh, I'm probably not aware of more than
18 perhaps four or five fish kills over the period of
19 time that I have been at the Refuge.
20 Q. Now you commonly associated those fish
21 kills with low dissolved oxygen, did you, in the
22 water?
23 A. When I arrived at the Refuge, one of the
24 pieces of information that I was provided to look at
25 was information regarding fish kills that occurred in
178
1 the early eighties in the Refuge. Those fish kills
2 were determined, if my memory is correct, to have
3 been caused by the presence of a chemical in the
4 surface discharges. I believe the chemical was
5 lindane.
6 So when I was looking at fish kills after
7 my arrival at the Refuge, our greatest concern was
8 whether the kill was in response to a pesticide or
9 some other compound being discharged into the Refuge
10 in the surface waters or from some other phenomenon.
11 My interpretation of the observations I
12 made were that these fish kills were probably the
13 result of low dissolved oxygen in the canals.
14 Q. Was that a different conclusion than the
15 conclusion in this piece of information that you
16 received when you got there attributing the kill to
17 lindane?
18 A. Well, that was a different event, and to
19 the extent that I did not attribute this mortality to
20 lindane or any other chemical introduced into the
21 Refuge, I suppose you would say that was a different
22 conclusion.
23 Q. What is lindane?
24 A. It's an herbicide, and I don't recall at
25 this time whether it was a rodenticide or exactly
179
1 what it was used for.
2 Q. But somehow you came to the conclusion that
3 lindane or an herbicide was not responsible for the
4 kills, the four or five that you observed, rather,
5 dissolved oxygen was the immediate cause; is that
6 fair?
7 A. That's correct.
8 Q. Did you rule out lindane based on some
9 analysis or did you rule in dissolved oxygen because
10 of some observation?
11 MS. PONZOLI: Object to form.
12 THE WITNESS: Well, the conclusions that I
13 made, as I indicated, were based on my
14 observations, not only the species composition
15 of the fish present, dead fish present, but also
16 as a result of dissolved oxygen measurements
17 that were made, information regarding pump
18 activity and things of that nature.
19 BY MR. SMITH:
20 Q. Are there particular species of fish in the
21 Refuge that you consider to be particularly
22 vulnerable to these levels of dissolved oxygen in the
23 water column?
24 A. Yes, some species are more vulnerable than
25 others.
180
1 Q. And what fish did you observe in the kill,
2 the four or five that you observed? Was there a
3 common constituency, species?
4 A. It's been a long time since these events
5 occurred.
6 My recollection is that large mouth bass
7 were common among the dead fish. I would really need
8 to look at those reports to remember what other
9 species were present. I just don't recall right now.
10 Q. All right, sir.
11 MR. SMITH: We would respectfully request
12 those reports, please, Ms. Ponzoli.
13 MS. PONZOLI: I think you have been
14 provided them, Mr. Smith. The fish reports were
15 provided with the Refuge's documents.
16 If I am wrong, Dr. Maffei, I am perfectly
17 happy to --
18 MR. SMITH: We will check it. It is either
19 my oversight or, at any rate, we will
20 investigate it.
21 MR. SMITH: Do you believe you produced
22 them?
23 THE WITNESS: I believe they have been
24 produced.
25 MR. SMITH: All right.
181
1 MS. PONZOLI: Most likely on more than one
2 occasion, to be quite candid.
3 MR. GAINES: On which occasions?
4 MS. PONZOLI: Document productions for the
5 Refuge, probably productions for Mr. Neely's
6 and/or Dr. Maffei's documents, but I remember
7 almost specifically with the productions for the
8 Refuge.
9 MR. GAINES: Could we get a date on those
10 reports?
11 MS. PONZOLI: No, I don't think we need to
12 provide the dates. I think you have had the
13 documents and you have --
14 MR. GAINES: I don't mean of the
15 productions. I mean of the reports.
16 MS. PONZOLI: No, go look for your
17 documents on the fish, Mr. Gaines. You have
18 made massive, massive document requests to the
19 Refuge, and frankly, I truly believe there are
20 very few documents that you don't already
21 possess that the Refuge has.
22 MR. GAINES: Well, Suzan, it's a massive
23 case, there are a lot of documents. So you are
24 unwilling to give us an idea of the date of the
25 fish reports?
182
1 MS. PONZOLI: No, I think what you are
2 asking us to do is to go back and do another
3 document production or a document search, and
4 having done this so many times for you --
5 MR. GAINES: I'm not asking that at all.
6 MS. PONZOLI: Well, let me finish.
7 MR. GAINES: Never mind, I'm sorry to
8 interrupt. I'll ask him when it's my turn.
9 MS. PONZOLI: Okay, you are certainly
10 welcome to, but let me make the record complete
11 on this point.
12 We are presently in the process of having
13 to do yet another request on your behalf, so I
14 think to add to that burden at this point is
15 unreasonable and unfair.
16 MR. GAINES: I think if you read the
17 president's reason memo, you shouldn't be
18 considering requests a burden. He is imploring
19 you to embrace openness and respect such a
20 request.
21 MS. PONZOLI: On the Refuge's part, we
22 couldn't embrace a request more than we have in
23 the past. It is a concept that would not be
24 possible, having been so open in the past.
25 MR. GAINES: Okay, then I'm sure you will
183
1 find your reports.
2 MS. PONZOLI: I'm sure you will.
3 MR. GAINES: Sorry for the interruption.
4 BY MR. SMITH:
5 Q. Dr. Maffei, the four or five fish kills
6 that you observed, what was the approximate quantity
7 of fish or range of fish killed?
8 A. The ones that I observed would be in the, I
9 think generally between 1 and 1,000 fish -- excuse
10 me, 100 and 1,000 fish. That's generally my
11 recollection of the range of fish. I don't recall
12 exactly what estimates we put in those reports.
13 Q. Did I correctly gather from your testimony
14 that these fish kills were virtually at the S-5A or
15 S-6 structures?
16 A. No, sir. The most common way that we found
17 out about fish kills was by the concession area which
18 was established at the south end of the Refuge
19 reporting to us that either they had observed dead
20 fish or that visitors had observed dead fish.
21 And while the reports might have said, for
22 example, there is dead fish along the L-39, they are
23 floating up at our docks, meaning they were floating
24 up at the docks at the south end of the Refuge, we
25 would go to the concession area, and look at what was
184
1 there. We did not generally go to the pumps.
2 Let me restate that. I never went to the
3 pumps to look at what was occurring there. We would
4 contact the Water Management District or by some
5 other means ascertain whether or not the pumps had
6 been running.
7 Q. And you received an affirmative response in
8 each case you inquired?
9 A. My recollection is in each case we did
10 receive information indicating that the pumps had
11 been running.
12 Q. Where is the concession area located?
13 A. At the bottom of the Refuge, essentially at
14 the location where the S-39 structure is located.
15 Q. And is that a structure at the juncture of
16 the Hillsboro Canal and L-40?
17 A. Yes, I believe it is.
18 Q. And to get there, to investigate a fish
19 kill you would go by road?
20 A. Typically I think we drove down the levee
21 to get to that location.
22 Q. And did you associate the kill with any
23 particular pump activity?
24 A. No, sir.
25 Q. Would the candidates for consideration be
185
1 S-5A and S-6?
2 A. Yes.
3 Q. Are there any others that would be inflow?
4 A. Yes, there are two other pumps. They
5 belong to the Acme Drainage District.
6 Q. And where are they?
7 A. They are located just outside the L-40
8 levee in the northern portion of the Refuge.
9 Q. And do they introduce waters directly into
10 the Refuge?
11 A. I am not exactly certain of the
12 relationship of the location of those pumps to the
13 Refuge boundary, but it's very close, if not directly
14 into the Refuge.
15 Q. So it either pumps directly into the Refuge
16 or I presume into the C-51 or some other canal from
17 which water is pumped into the Refuge by the S-5A; is
18 that the implication that I should correctly draw?
19 A. These pumps are not located near the C-51
20 canal nor generally near the S-5A.
21 They pump water into canals which are
22 relatively short, 100 yards or so in length, I don't
23 know the exact lengths, which then terminate at
24 structures in the L-40 levee, which can allow the
25 water to flow from these short canal areas into the
186
1 L-40 levee.
2 Q. How far down the eastern perimeter of the
3 L-40 do those short canals intersect?
4 A. Well, to give you an estimate, it's perhaps
5 four or five miles.
6 Q. And the total length of the L-40 is about
7 what?
8 A. The total length of the L-40 from the S-6
9 to where the S-39 -- excuse me, from the S-5A down to
10 where the S-39 structure is, probably on the order of
11 25 miles, give or take a few.
12 Q. Who runs the Acme pump?
13 A. The Acme Drainage District.
14 Q. And what area does that serve?
15 A. It's a drainage District located east,
16 generally east of the Refuge, generally east of the
17 northern half of the Refuge.
18 Q. Have you done any testing in the short
19 canal leading from the Acme?
20 A. I have not.
21 Q. Do you know anyone who has?
22 A. I don't know anyone who has.
23 Q. What's the general condition of the water
24 that comes into the Refuge from the Acme Drainage
25 District, if you know?
187
1 A. Other than reviewing some data compiled by
2 the Acme Drainage District several years ago, I
3 haven't looked at any information relative to the
4 nature of the water coming in that I can recall.
5 Q. Do you recall what the data that you did
6 review indicated?
7 A. As I recall, it indicated water of a
8 quality similar to that being discharged by S-5A and
9 S-6 pumps, but perhaps not quite as loaded with
10 phosphorus, for example, but I don't really have a
11 very good recollection of the quality of that water.
12 Q. At any rate, when you investigated these
13 four or five fish kill reports at the concessionaires
14 site and usually called the District to inquire if
15 the pumps had run, you were referring, of course, to
16 S-5A or S-6?
17 A. That's right.
18 Q. And are those pumps run simultaneously when
19 either one of them is run?
20 A. Not necessarily, no.
21 Q. So it might have been one pump or another
22 that had run?
23 A. Yes.
24 Q. When was the last fish kill report that you
25 remember?
188
1 A. I don't recollect the dates of any of the
2 fish kills.
3 Q. Could you say with any confidence that it
4 was a month ago or three years ago?
5 A. Well, I don't remember a fish kill a month
6 ago.
7 There may have been reports in the last
8 three or four years of fish kills. I don't remember.
9 I don't recall investigating any in the last three or
10 four years.
11 Q. All right, sir. What's the general
12 condition of the fish population in Loxahatchee in
13 terms of number and diversity of species?
14 A. Well, generally there is a relatively high,
15 relative to numbers that might be found elsewhere in
16 the Everglades, high number of fish. I believe there
17 is relatively, or there is high diversity.
18 Q. Do you regard the Loxahatchee as being a
19 superior fishery compared to other areas of the
20 Everglades?
21 MS. PONZOLI: Object to form.
22 THE WITNESS: Superior in what regard?
23 BY MR. SMITH:
24 Q. Superior in number of available fish and
25 diversity of fish available for anglers or for
189
1 anybody else who is interested in fish.
2 A. Well, I believe that the area has the
3 potential to have a good fishery for anglers.
4 I have read opinions by individuals who
5 were there in the past who indicated that at one
6 point the area of Loxahatchee was among the best
7 fishing locations in the state.
8 I believe it has the potential of being a
9 very superior fishing location.
10 Q. Do anglers frequent the Loxahatchee for
11 fishing?
12 A. You get people using the area for fishing
13 on a frequent basis.
14 Q. Using what for fishing?
15 A. Using the area for fishing.
16 Q. And usually these numbers are included in
17 your annual report; are they not?
18 A. I believe they are.
19 Q. Is there a problem with mercury in some of
20 these fish, causing some of the fish to be just
21 caught and released?
22 A. Yes, sir. We have consumption advisories
23 on fish caught within the Refuge as a result of high
24 levels of mercury present in their edible portions.
25 Q. Correct me if I'm wrong, but I believe I
190
1 remember seeing in one annual report an observation
2 that most of the bass fisherman catch and release
3 whereas the brim fisherman keep their catch.
4 Am I correct or does that comport with your
5 experience?
6 A. I don't recall that any report says that,
7 but it's consistent with my observations, I think.
8 Q. All right. Now what herbicides or other
9 chemicals does the Refuge use for control of
10 undesirable growth in the Refuge?
11 A. We use a product known as Arsenal. We use
12 a product known as Rodeo. We use a product known as
13 Spike, a product known as Diquat.
14 Q. Is that with an i or a y?
15 A. D-i-q-u-a-t is the way I believe that it's
16 spelled.
17 Q. Okay.
18 A. And a product known as Garlon 3A, also a
19 product known as Garlon 4.
20 We use a product known as Amdro, and at
21 times other products have been used, but I think that
22 that exhausts the list at this time, although there
23 might be one or two others that I have left off.
24 Q. Have you ever observed any untoward effects
25 on fish or other species in connection with your own
191
1 use of chemicals?
2 A. I don't recall ever observing that.
3 I know that we have a short canal, I
4 believe it's probably half mile long, which is
5 present in our headquarters area which is used to
6 distribute water to various impounds which we have,
7 and at times that canal becomes totally covered with
8 vegetation.
9 And there have been instances when we have
10 sprayed that canal to eliminate some of the
11 vegetation and various people have expressed a
12 concern that perhaps the dying vegetation would
13 result in reduced dissolved oxygen and thereby
14 resulting in mortality to fish in the canal. I have
15 never observed that occur.
16 Q. Finally on the question of fish population,
17 is the fishery stable? Is it improving or is it
18 declining?
19 A. It's my hope that it's improving. Our
20 modification, our efforts to modify the regulation
21 schedule are designed to, among other things,
22 increase the fish population and increase the age,
23 size distribution of the fish present.
24 Because we have had the marsh inundated for
25 a couple of years, almost continuously, it's my
192
1 belief that the fish population is probably
2 responding to the increased depth and duration of
3 flooding.
4 Q. So when you say that you hope that it's on
5 an improving trend, I take it you are making a
6 cautious observation of preliminary indications that
7 the revised schedule is indeed producing the trend
8 that you wish to see occur?
9 A. Well, we are not on the revised schedule
10 yet. We have been maintaining higher water levels
11 under operation of the current schedule, but my
12 observation is that the marsh has not dried out as it
13 had, for example, in the first few years that I was
14 there.
15 And therefore, the types of stress or
16 mortality that the population would experience when
17 the marsh was dewatered in certain locations, the
18 fishery population is experiencing that to a lesser
19 extent. So I would assume that that is beneficial to
20 the fishery population.
21 Q. And you make the same assumption with
22 respect to the recent improvement in snail kite usage
23 of the Refuge; do you not?
24 A. Correct. I assume, based on my
25 understanding of the ecology of apple snails, that
193
1 increasing the depth of the water and the duration of
2 flooding is beneficial to apple snail populations.
3 Q. How within the current schedule has
4 Dr. Maffei influenced the increase of water levels or
5 the duration of the water presence? How just in
6 practical terms have you brought that about?
7 A. The regulation schedule that we currently
8 operate under is divided into zones. There is a zone
9 which, depending on antecedent conditions, allows
10 regulatory discharges at the S-10 structures to cease
11 when the schedule is at its low point, at 15 feet
12 above mean sea level.
13 Under a different set of antecedent
14 conditions, those discharges would not cease until
15 the water levels were at 14 feet above sea level.
16 The desire to reach 14 feet above sea level was one
17 that Fish & Wildlife Service had under prior Refuge
18 management.
19 The operation and the opinion of the
20 individuals I deal with at the Corps of those
21 structures -- let me rephrase that.
22 The individuals I deal with at the Corps do
23 not really care whether the marsh gets to 14 feet or
24 15 feet. The Corps is satisfied with bringing water
25 levels down to 15 feet or slightly above that.
194
1 So because they have expressed to me the
2 opinion that getting to 14 feet was something Fish &
3 Wildlife Service had wanted, if we don't want to do
4 that, they can operate the facility so that they
5 operate in the zone of the schedule, which calls for
6 regulatory releases to stop when water levels are at
7 or about 15 feet.
8 Q. Or slightly above even?
9 A. Slightly above even, if they believe it
10 won't interfere with their operation of the facility.
11 Q. Are these certain antecedent conditions
12 which say require that water draw down to 14 feet
13 just so -- evidently from what you said, you have
14 been able to have the Corps observe the 15 foot level
15 without regard for those antecedent conditions.
16 Have I correctly, is there some play in
17 that for interpretation that has been of benefit?
18 MS. PONZOLI: I'm going to object to form.
19 You have asked a compound question. I believe
20 you did misphrase his former answers, maybe not
21 deliberately, but --
22 BY MR. SMITH:
23 Q. Let me try again, Dr. Maffei.
24 I understood you to say that there is a
25 zone in the regime of the current schedule which
195
1 under certain antecedent conditions dictates a
2 lowering to 14 feet and under other antecedent
3 conditions permits a maintenance of 15 feet or
4 slightly above.
5 Did I correctly understand that?
6 A. That's the way the schedule was put
7 together.
8 Q. And who put it together?
9 MS. PONZOLI: That's a huge process,
10 Mr. Smith. I do believe your client knows how
11 to do that process rather well.
12 THE WITNESS: My understanding of the
13 events in the early to mid seventies when that
14 was done was that it was a process participated
15 in by Fish & Wildlife Service personnel, Army
16 Corps of Engineers personnel, South Florida
17 Water Management District personnel.
18 BY MR. SMITH:
19 Q. And who finally announced the schedule?
20 A. That is the responsibility of the Army
21 Corps of Engineers.
22 Q. Are you able to say whether the Army Corps
23 of Engineers acted as a mediator in a sense of these
24 different interests or that it had an agenda of its
25 own that it wished to establish?
196
1 Can you characterize it?
2 MS. PONZOLI: Object to form.
3 THE WITNESS: I'm not able to say what its
4 role was.
5 BY MR. SMITH:
6 Q. It's a piece of paper?
7 A. Yes, sir.
8 Q. And it's in your office?
9 A. Yes, sir.
10 Q. And it bears the US Army Corps of
11 Engineers' insignia?
12 A. Yes, sir.
13 Q. And it's been in existence since the early
14 seventies?
15 A. That's the right time frame, yes.
16 Q. Now returning to my question about the
17 regimes, I take it that the antecedent conditions
18 that, according to the text of the schedule, would
19 require that the Refuge lose water to a depth or to
20 or until a depth is obtained of 14 feet are either so
21 loosely stated that they may be interpreted as not
22 applicable or they are being disregarded.
23 Would you tell me what the case is?
24 MS. PONZOLI: Object to form.
25 THE WITNESS: My understanding of the
197
1 schedule was that the Fish & Wildlife Service
2 wanted the marsh drawn down over some portion of
3 it with some regularity; therefore, there was,
4 and I don't have the schedule in front of me to
5 see the exact wording, but there was a condition
6 in which if water levels were below a certain
7 point on a particular date, and that changed
8 with time, then the Corps would continue to try
9 to reach a minimum level of 14 feet.
10 If the water levels crossed that line --
11 BY MR. SMITH:
12 Q. Going below?
13 A. No, if the water levels went above that
14 particular part of the schedule into the other zone,
15 then it was no longer necessary to --
16 Q. Strive for 14 feet?
17 A. Correct.
18 Q. So you gathered then that this is a, sort
19 of a trigger point, somewhat above 14 feet that says
20 you are getting close to the ideal, go ahead and go
21 for it?
22 A. Well, I don't consider it the ideal.
23 Q. I certainly recognize Dr. Maffei doesn't,
24 but is that the sense of the regime that has been in
25 place?
198
1 MS. PONZOLI: Object to form.
2 THE WITNESS: Well, the schedule I think
3 speaks for itself.
4 BY MR. SMITH:
5 Q. All right, sir, and I apologize for
6 treating it so loosely.
7 At any rate, there was, would it be fair to
8 say, some sort of a trigger point slightly above 14
9 feet where the schedule then calls for a draw down to
10 14 feet?
11 A. There is a zone and there are words to
12 interpret the schedule, and if I had it before me, I
13 could read to you all the various conditions that
14 pertain.
15 Q. Okay. But are they conditions which
16 according to the text of this schedule cause a draw
17 down to 14 feet or are they conditions that exist in
18 the Refuge itself?
19 A. Yes.
20 Q. And do those conditions have to do with
21 water levels?
22 A. Yes.
23 Q. And antecedent pumping conditions and
24 rainfall?
25 A. They have to do with water levels, all of
199
1 which are impacted by pumping and rainfall.
2 Q. And these conditions are wholly within the
3 Refuge?
4 A. Yes.
5 Q. And according to your understanding, were
6 those conditions inserted in the operating program at
7 the request of Loxahatchee Refuge?
8 A. The schedule, the interim schedule
9 currently in place was implemented in part of the
10 request of the U.S. Fish & Wildlife Service.
11 Q. Well, was anybody else interested in
12 describing the conditions in the Refuge that would
13 make it desirable for the Refuge to reach 14 feet?
14 MS. PONZOLI: Object to form. I'm not sure
15 how he would know who was interested.
16 BY MR. SMITH:
17 Q. If you don't know, you don't know.
18 A. I don't recall anybody else.
19 Q. Okay. At any rate, when you came on board,
20 how long was it before you conceived that this drying
21 out of the Refuge was a less desirable alternative?
22 A. Within a few months to a half year.
23 Q. Did you take it up with the people that you
24 deal with at the Corps?
25 A. At some point I did.
200
1 Q. Do you delegate this to someone else,
2 Dr. Maffei, to make a telephone call to the Corps or
3 do you yourself exercise that responsibility?
4 A. Depends on what the purpose of the
5 communication is. I frequently make the call myself.
6 Q. And do you call one person or several?
7 A. Typically I call one person.
8 Q. And who is that?
9 A. Mr. Jim Vearil.
10 Q. Spell the last name.
11 A. I believe it's V-e-a-r-i-l.
12 Q. Have you ever requested that Mr. Vearil or
13 anybody else at the Corps remove water from the
14 Refuge?
15 A. I don't recall ever making that request.
16 Q. Have there ever been any conditions of
17 water levels at the Refuge that would provoke you to
18 do that?
19 A. Have there ever been conditions which if
20 they existed today would cause me to call them and
21 ask them to discharge water?
22 Q. Yes.
23 A. I'm aware that on one occasion water levels
24 were over 18 feet. I don't know whether under those
25 circumstances I would have called them to request
201
1 discharge of water or not.
2 Q. You didn't at the time it occurred?
3 A. The time I believe was approximately 1960,
4 so I certainly did not.
5 Q. According to the records of the Refuge, did
6 somebody?
7 A. I have seen no reference to somebody from
8 the Refuge calling.
9 Q. Okay. At any rate, would it be fair to say
10 that you have an understanding with the Corps that at
11 your request, water levels can be maintained at a
12 minimum of 15 feet or slightly higher in the Refuge?
13 MS. PONZOLI: Object to form.
14 THE WITNESS: My understanding is that the
15 Corps has discretion as to how how it operates
16 that schedule and that since we, the Fish &
17 Wildlife Service as part of management of the
18 Refuge no longer have a desire to bring water
19 levels down to 14 feet, the Corps does not feel
20 compelled to insure that that happens.
21 BY MR. SMITH:
22 Q. All right. Now we're a long way from the
23 incidence of hydrogen sulfide, but I would like to
24 return to that.
25 Did you smell or detect the odor that our
202
1 senses associate with hydrogen sulfide on any of
2 these investigations of fish kills?
3 A. Not that I recall.
4 Q. Would I take it that you haven't had an
5 experience in which you associate that odor with
6 hydrogen sulfide in consequence of water content as
7 such?
8 That's put very badly, but my point is I
9 took it from your explanation of the incidence that
10 this arose from a disturbance of the peat. Where the
11 peat is not disturbed either by your boat or by your
12 hand, have you ever smelled hydrogen sulfide in the
13 Refuge?
14 A. There have been occasions when I have
15 walked in the marsh and smelled it.
16 Q. Your feet were disturbing the peat?
17 A. Correct. And there have been occasions
18 when other individuals have taken handfuls of soil
19 from the marsh and have smelled it.
20 Q. All right.
21 A. So --
22 Q. But this smell is not associated with the
23 water as such? It's associated with the soil?
24 A. That's correct, in my opinion.
25 Q. In your opinion. Now you explained to me
203
1 as a novice, and I thank you, that your understanding
2 is that certain organisms can respire using sulfur to
3 create HS2 under anaerobic conditions; that is, when
4 low dissolved oxygen prevails, I take it, in the
5 soil.
6 Have I got that right?
7 A. That's generally my understanding, yes.
8 Q. And you told us that you have not done
9 measurements of dissolved oxygen in the soil, but you
10 have done them in the water; is that correct?
11 A. Uh huh.
12 Q. Is it your opinion that there would be a
13 correlation between the degree of low dissolved
14 oxygen in the water and in the adjacent soil at any
15 given time?
16 A. I don't recall seeing data which would
17 indicate the presence of correlation or not between
18 dissolved oxygen and presence or absence of oxygen in
19 the soil.
20 Q. I took it from your earlier testimony that
21 there is a certain transience or at least a certain
22 lack of uniformity in the measurements of dissolved
23 oxygen in the water at various parts of the Refuge,
24 varies from time to time and place to place.
25 A. That's right.
204
1 Q. But would you suppose that in any given
2 place where there is dissolved, low dissolved oxygen
3 in the soil that that too would vary from time to
4 time?
5 A. I suppose that could vary as well.
6 Q. Depending upon the water habitat of the
7 soil?
8 A. I don't know what you mean, the water
9 habitat of the soil.
10 Q. Okay, I don't either.
11 Let's leave it at this, that you don't know
12 whether there is a correlation at any given place
13 between the degree of low dissolved oxygen in the
14 soil and the degree of low dissolved oxygen in the
15 surrounding water?
16 A. I agree with that.
17 Q. All right.
18 THE WITNESS: Can I take a break, please?
19 MR. SMITH: Yes.
20 (Thereupon, a recess was taken.)
21 BY MR. SMITH:
22 Q. Dr. Maffei, while on this break have you,
23 or following this break have you had anything to add
24 to your testimony or change from consequences of
25 reflecting on it over the break?
205
1 A. I don't recall --
2 Q. All right.
3 A. -- any change in anything.
4 Q. Back on water levels, as you understood the
5 original scheme, was it contemplated that the water
6 levels at what became Water Conservation Area
7 Number 1 or the major portion of the Loxahatchee
8 Refuge were to be at a relatively stable 17 feet mean
9 sea level, or do you know?
10 A. The original scheme of what?
11 Q. Essentially the South Florida Flood Control
12 Project.
13 A. I don't recall.
14 MR. SMITH: All right. Let me show you a
15 Fish & Wildlife Report, that's the title of it,
16 for Inclusion in the Corps of Engineers' General
17 Design Memorandum, Part I, by the Bureau of
18 Sport Fisheries and Wildlife of the Department
19 of the Interior, December 1958, and ask that
20 this be marked Exhibit G to Dr. Maffei's
21 deposition.
22 (The document was marked
23 Maffei Exb. No. G.)
24 BY MR. SMITH:
25 Q. Do you recognize that as the title of the
206
1 predecessor of the Fish & Wildlife Bureau, Bureau of
2 Sport Fisheries and Wildlife? If you don't know,
3 don't struggle for it.
4 A. I don't recall it necessarily having that
5 name, but it wouldn't surprise me if it went through
6 one or two modifications.
7 Q. At any rate, the cover letter, which is
8 Bates numbers 512 to 514, appears to be the insignia
9 of the Department of the Interior signed by the same
10 Walter Gresh of whom we have spoken earlier; is that
11 correct?
12 A. I assume if you are referring to Bates
13 number DMM 0010512, that document does at some point
14 have Walter Gresh's signature and that cover page 512
15 says Fish & Wildlife Service, Bureau of Sport
16 Fisheries and Wildlife.
17 Q. Well, do you recognize Walter Gresh as
18 being in the lineage of the head of region four of
19 what is now the US Fish & Wildlife Service?
20 MS. PONZOLI: I think it's been asked and
21 answered, who he was yesterday.
22 MR. SMITH: Yesterday, but I'm just making
23 a correlation with this new title that we are
24 trying to establish.
25 THE WITNESS: I recognize the name.
207
1 BY MR. SMITH:
2 Q. All right. In the first paragraph of the
3 letter he refers to its report herewith, does he not,
4 for inclusion in the general design memorandum?
5 A. Yes, he does.
6 Q. And would you turn back to Bates number,
7 I'll give you the final three digits, if I may, 542.
8 MS. PONZOLI: Was this attached to
9 Mr. Neely's deposition?
10 MR. SMITH: Yes, with the same, with the
11 corresponding letter G.
12 BY MR. SMITH:
13 Q. Is that just then, a gross look then
14 appears to be a typical sort of water stage design,
15 which this happens to call for staging between 14 and
16 17 feet, depending on the season?
17 A. I'm not sure I understand your question.
18 Q. It has a configuration that you are
19 familiar with of a water stage design generally?
20 A. This appears to be a regulation schedule
21 and it says Conservation Area-1, seasonal regulation
22 between 14 and 17.
23 Q. All right. Now would you turn back to page
24 eight of the report and paragraph 24 and read that to
25 yourself and paragraph 25.
208
1 MS. PONZOLI: Mr. Smith, I can almost
2 anticipate where we are going, and I do have
3 some problem with asking Dr. Maffei to continue
4 to answer questions on unfamiliar documents on
5 isolated portions of them without having
6 reviewed the entire document. And I want that
7 objection on the record.
8 MR. SMITH: Very well, thank you.
9 BY MR. SMITH:
10 Q. Dr. Maffei, do you agree that this appears
11 to be an authentic report of your agency with respect
12 to the design of water staging of the Loxahatchee
13 area?
14 MS. PONZOLI: I object also to the use of
15 the word authentic. I don't think that he can
16 speak as to the authenticity of this document.
17 THE WITNESS: I agree that this appears to
18 be a report of Fish & Wildlife Service in 1958
19 and that there is discussion here of water
20 levels.
21 BY MR. SMITH:
22 Q. And subject to your further review of this
23 document at leisure, please, would you agree that
24 these two paragraphs seem to record at least in
25 Mr. Gresh's or Dr. Gresh's opinion or observation
209
1 that initially planning by the Bureau of Sport
2 Fisheries and Wildlife and by another agency involved
3 in planning was predicated on the assumption that
4 area one would have a relatively stable water level
5 of a maximum elevation of 17 feet, but that the Corps
6 of Engineers, that other agency, found that stable
7 water levels would not be feasible considering
8 hurricane waves and destruction of vegetation that
9 was necessary to buffer potential flood waters?
10 Is that a fair characterization of those
11 paragraphs?
12 MS. PONZOLI: I think the paragraphs speak
13 for themselves, Mr. Smith, and they don't need
14 Dr. Maffei's reading or saying you have
15 characterized them. They are relatively short
16 paragraphs.
17 BY MR. SMITH:
18 Q. Well, let's take it in parts. If you don't
19 know, please just say you don't know.
20 Does anybody have superior knowledge about
21 the original staging of water levels as planned for
22 Water Conservation Area Number 1 than you?
23 Anybody in the Fish & Wildlife Service
24 today have knowledge superior to your own knowledge
25 about what the original plan was for water staging in
210
1 Loxahatchee?
2 A. I don't know if anybody does. It's
3 possible somebody does.
4 Q. Well, we all agree, do we not, that to the
5 extent we are depending upon knowledge of plans that
6 were developed in 1947 to 1950, we have to rely upon
7 documents, because most of us weren't here in any
8 kind of adult activity taking part of that today?
9 MS. PONZOLI: I don't think we quarrel with
10 that, Mr. Smith.
11 BY MR. SMITH:
12 Q. Do you agree with that, Dr. Maffei?
13 A. I agree with that.
14 Q. And you are accustomed to relying upon
15 documents in your profession and your scientific
16 endeavor that you regard to be authentic?
17 A. I am accustomed to looking at documents.
18 Q. And relying on them if you consider them to
19 be authentic and consonant with your general
20 experience?
21 A. Generally, yes.
22 Q. And you wouldn't make any exception for
23 historical documents related to water levels in the
24 Refuge, would you?
25 A. No, sir.
211
1 Q. Well, let me just ask you to assume then
2 that your detailed study of Exhibit G at leisure
3 will, or your inquiry into collateral areas of
4 verifying it will satisfy you this is an authentic
5 document.
6 Would you not agree that you as a witness
7 based upon these documents would have to say on the
8 basis of this report at least that the original stage
9 was a relatively stable level of 17 feet, which was
10 found to be infeasible for the reasons stated in
11 paragraph 25?
12 MS. PONZOLI: I'm not trying --
13 MR. SMITH: Subject to Ms. Ponzoli's
14 continuing objection.
15 MS. PONZOLI: Well, I mean you ask him
16 questions now and you say read it later. I
17 think that's a problem.
18 THE WITNESS: I am interested in reading
19 the entire document so I can have a good
20 discussion of it.
21 Relative to paragraph 24, which is one of
22 the two paragraphs I have read --
23 MR. SMITH: Well, Ms. Ponzoli has read it
24 and she can direct you to any other parts.
25 MS. PONZOLI: No, Ms. Ponzoli has not read
212
1 it. I don't do homework for your depositions
2 that you direct, Mr. Smith. I do homework that
3 I think is appropriate.
4 And it is fairly customary to provide
5 attorneys with copies of the documents. Now I
6 realize you provided these at Mr. Neely's, but
7 it's somewhat problematic that I'm on travel and
8 I don't have Mr. Neely's with me, but no, I will
9 not assume responsibility for having to inform
10 him as to how to answer the questions.
11 I think what you better do is give him the
12 opportunity to review it and then question him
13 on it is what I think you need to do.
14 MR. SMITH: Would you prefer to do that now
15 or shall we come back another day and do that?
16 MS. PONZOLI: It's your choice.
17 MR. SMITH: You are not comfortable in
18 answering the question?
19 MS. PONZOLI: I'm not comfortable in his
20 answering questions, Mr. Smith, when you have
21 got a document of that length and you are asking
22 him on detailed portions of it answer my
23 questions now, but read the document later. I
24 find that irrational.
25 MR. SMITH: All right. Well, my purpose,
213
1 of course, is to try to move forward with the
2 deposition.
3 MS. PONZOLI: Perhaps he will be willing to
4 look at it over lunch. I don't have a problem
5 with that.
6 MR. SMITH: All right, let me try another
7 question.
8 BY MR. SMITH:
9 Q. Would you read the Exhibit G at an
10 opportunity here today and we'll return to paragraphs
11 24 and 25.
12 At any rate --
13 A. I would be happy to read it.
14 Q. At any rate, are you sufficiently familiar
15 with the history of your Refuge to know that at the
16 recommendation of the Bureau of Sport Fisheries and
17 Wildlife, the staging was set in 1950 to be between
18 14 and 17 feet as indicated in plate five at Bates
19 number 542?
20 A. I am aware that that was an early
21 recommendation. I wouldn't say that at this point
22 I'm aware of the involvement of the various agencies
23 in the development of that schedule.
24 Q. I'll ask you then to look at this with that
25 view and to pay particular attention if you will to
214
1 paragraph 32.
2 At any rate, and assuming for the moment,
3 we'll come back to it in later questioning, but Fish
4 & Wildlife had an active role in establishing these
5 stages, isn't that precisely the stage that prevailed
6 at the time you came to the Loxahatchee?
7 A. The schedule at the time I came to
8 Loxahatchee was one that had a maximum of 17 feet at
9 a point in the year and a maximum of 14 feet in
10 another point of the year, yes, sir.
11 Q. And was the general configuration of it
12 similar, if not identical, to plate five?
13 A. It's similar, not identical.
14 Q. Some modification of the months?
15 A. That's correct.
16 Q. But the configuration was similar and the
17 maximum and the minimum was identical?
18 A. The maximum, the change in the maximum is
19 the same as the change in the maximum in today's
20 schedule.
21 Q. Say that again.
22 A. The change in the maximum water levels is
23 the same as the change in the maximum water levels in
24 the schedule that we operate under today.
25 Q. All right. I accept your correction. We
215
1 are talking about two maximums, not a maximum and a
2 minimum?
3 A. That's correct.
4 Q. And has it been your desire in the
5 formation of a new staging program to achieve the low
6 range of the maximum at 15 feet as constantly as you
7 can?
8 A. The schedule which I proposed on which a
9 hearing has been held, a public hearing, and which
10 the Corps of Engineers is now considering as
11 implementing and is the interim regulation schedule
12 for Conservation Area-1, would change the highest
13 level at which water would be allowed to go before
14 regulatory discharges are made to 17 1/2 feet above
15 sea level.
16 And as I recall, the lowest level at which
17 regulatory discharges would be required to be made
18 would be 15.75 feet above sea level.
19 Q. And that was as proposed by Dr. Maffei?
20 A. Not exactly. There were some modifications
21 made to my original proposal, but they were just
22 slight.
23 Q. And what were your proposals?
24 A. I think I had originally proposed, and may
25 not recall this exactly, but I think my original
216
1 proposal brought the low maximum to 15 1/2 feet above
2 sea level at certain points of the year, and I think
3 somebody with the Corps modified that upwards and I
4 was agreeable to that modification.
5 Q. Why did the Corps wish to modify it upward?
6 A. I don't recall what their reason was. I
7 don't recall. I don't recall if I ever asked. It
8 was a modification which I was happy with and I did
9 not pursue it with them.
10 Q. Had you thought of it, would you have been
11 happy to have adopted the Corps' proposal as your own
12 for a slightly wetter regime?
13 A. Yes.
14 Q. Where does this measurement take place?
15 A. There are water level stations, gauges,
16 located on the Refuge and they are used by the Corps
17 to determine what the water levels on the Refuge are
18 relative --
19 Q. It's a weighted calculation of some sort?
20 A. It varies with circumstances, and I would
21 need to look at the schedule itself to be able to
22 tell you when a calculation of stages at three gauge
23 locations is used and when just a single gauge
24 location is used.
25 Q. Who installed the gauges?
217
1 A. I believe the gauges were installed either
2 by the Corps of Engineers personnel or USGS
3 personnel, but I can't say for sure.
4 Q. What is the USGS?
5 A. United States Geological Survey.
6 Q. Is that an agency of the United States,
7 part of the Department of Interior?
8 A. Yes.
9 Q. Okay, that's all I want.
10 There is a gradient in the Loxahatchee, is
11 there not, from higher elevations in the north to
12 lower elevations in the south?
13 A. Yes.
14 Q. And so it's the north that tends to dry out
15 first in drying conditions?
16 A. Yes.
17 Q. And is part of your motivation for wishing
18 a dispensation of the present regime and urging a
19 generally wetter climate for the proposed regime to
20 avoid dewatering of the north?
21 A. I never asked for a dispensation of the
22 current regime.
23 Q. Well, let me state it correctly then.
24 You did invoke the Corps' discretion to
25 observe, in order to observe a low maximum of 15 feet
218
1 rather than 14 feet, did you not?
2 A. I think your characterization of what I did
3 is interesting. I inquired -- let me back up.
4 In 1991, I believe it was, when there was a
5 large rainstorm event over this part of the area,
6 water levels in January in the Refuge went very high
7 into the portion of the schedule which would have
8 resulted in foregoing a 14 foot level.
9 In that year then I became aware, more
10 fully aware of the manner in which the Corps operates
11 the S-10 structures relative to water levels, and I
12 inquired as to the ability of the Corps to maintain
13 water levels in that zone in the subsequent year.
14 This was after discussions on modifying the interim
15 regulation schedule had taken place.
16 And the response, as I recall, was that it
17 was possible for them to do that. It would be done
18 depending on conditions at a point in time.
19 In other words, they could not say to me
20 yes, we will keep water levels up higher, but if the
21 opportunity presents itself, then they would do what
22 they could to work with us.
23 Q. And is that what's happened?
24 A. They have worked with us, yes.
25 Q. Has there been an instance in which you
219
1 called the Corps, Mr. Vearil, and asked or anyone
2 else and asked for some withholding of releases when
3 they had to decline?
4 A. There have been instances when I have
5 called the Corps to inquire what the status of the
6 operations was and to let them know that I would like
7 to retain water, and their response would be, for
8 example, along the lines that we need to release
9 water, but we plan on closing the gates in a few
10 days, and I would say fine.
11 That's a general characterization of the
12 discussion I might have had.
13 Q. All right. What was the stated rationale
14 for drying out the marsh every three or four years by
15 Refuge management preceding your own?
16 A. As I recall, there were references to marsh
17 plants that require a moist seed bed for germination,
18 and it was their desire to provide that kind of a
19 situation on some periodic basis.
20 MS. PONZOLI: Mr. Smith, I need to clarify
21 the record. I think I should have spoken to
22 your question. I could be wrong, but I don't
23 think I am.
24 I believe that Mr. Neely might take
25 exception to Dr. Maffei's managing the Refuge.
220
1 It's sort of I think a term of art. Mr. Neely
2 manages it. Dr. Maffei makes scientific and
3 technical advisories to that management.
4 And I only wish the record to be clear,
5 because I in my view did not see the Refuge as
6 under Dr. Maffei's management.
7 MR. SMITH: Thank you.
8 BY MR. SMITH:
9 Q. Where in the Refuge were these moist areas
10 desired for the germination of seeds for certain
11 species? Were they in the north, northern part of
12 the Refuge?
13 A. Well, that generally would have been the
14 portions of the marsh dried out or dewatered, not
15 dried, but dewatered for the longest period of time.
16 Q. And was this regime that you have described
17 to dewater the entire Refuge every three to four
18 years?
19 A. No, sir, that's not my understanding.
20 Q. Okay. Well, can you say how much of it was
21 dewatered every three or four years?
22 A. I don't recall right offhand what the
23 desire was. In fact, I may not even know what the
24 desires of those individuals were, but my
25 recollection is that it was a goal of that schedule
221
1 to dewater some portion of the marsh.
2 I don't recall right now as I sit here what
3 percentage they were striving to achieve.
4 Q. And at what level is the northern part
5 dewatered?
6 A. Well, the land elevations, as I understand
7 them in the northern portion of the Refuge, not
8 counting tree island elevations, run from
9 approximately 16.3 feet above sea level and decline
10 gradually from there.
11 However, that does not necessarily mean
12 that simply because the gauge being used to monitor
13 water levels on the Refuge indicated levels below
14 16.3 feet that land areas with that elevation were
15 dewatered.
16 I guess I would have to say that an area is
17 dewatered when there is no water on it, and the
18 elevation, the official elevation of the stage at
19 which that occurs varies with conditions.
20 Q. Well, would an observed maximum elevation
21 or water stage elevation of 14 feet mean sea level
22 dewater a substantial part of the reserve?
23 A. My opinion is that it would.
24 Q. And did?
25 A. My experience is that it did.
222
1 Q. What were the species that were sought to
2 be served by that strategy?
3 A. Well, my memory is that reference was made
4 to Rynchospera species, beakrush species also. I
5 think sometimes that's referred to as white grass.
6 That is the only species that I recall reference to.
7 There were probably others.
8 Q. Can you name other species that profited by
9 alternating wet and relatively dry regimes?
10 A. Other species that profited by it?
11 Q. Yes.
12 A. By that you mean what?
13 Q. That tended to thrive.
14 A. I can give you my opinion of some species
15 that are present that might not otherwise have been
16 present in the densities that they are.
17 Wax myrtle, for example, is a species which
18 is more common on the northern portion of the Refuge,
19 and I believe it would have had a water regulation
20 regime which maintained higher water levels for
21 longer periods of time than adhered to.
22 I believe it's probable that the abundance
23 of sawgrass in some areas has increased as a result
24 of the regulation schedule that's in effect. To the
25 extent that we established yesterday there were
223
1 changes occurring in the area prior to the current
2 interim regulation schedule going into effect, I
3 don't know what other species I would attribute to
4 this schedule.
5 Q. Has the Corps' cooperation with your
6 contrary wishes in the recent past and will the
7 proposed regime when it's instituted likely achieve a
8 wetter overall climate?
9 MS. PONZOLI: Object to the form. It's a
10 really confusing question, Mr. Smith. I don't
11 think you intended it that way.
12 MR. SMITH: Let me try it again.
13 MS. PONZOLI: You said some things
14 backwards and I'm trying to sort them out
15 straightforward.
16 MR. SMITH: You like to have the subject
17 before the verb?
18 MS. PONZOLI: Sometimes, yes.
19 MR. SMITH: I'll see what I can do.
20 BY MR. SMITH:
21 Q. Is the water stage regime which is now in
22 place, a consequence of the cooperation that you have
23 described, more conducive to other species thriving
24 as compared to those that you have just mentioned?
25 A. The water levels which we have had in the
224
1 Refuge over the last couple of years are a result of
2 operating the system under the current interim
3 regulation schedule.
4 The higher water levels that have resulted
5 because the schedule has moved into a zone that does
6 not require regulatory discharges below 14 feet above
7 sea level has probably resulted in deeper water for
8 longer periods of time in portions of the Refuge.
9 I cannot say that I have observed impacts
10 to the vegetation as a result of that at this point.
11 Q. Would you anticipate a gradual change in
12 the characteristic of an incidence of certain species
13 a consequence of the new schedule coming into effect,
14 more water tolerant species?
15 A. I believe that an important environmental
16 variable which the vegetation use to let us say shape
17 the structure of the community is the depth and
18 duration of flooding or inundation.
19 And I believe that if the interim
20 regulation schedule is modified as is currently, as
21 has been proposed, and if water levels are at or near
22 the top of the schedule on a frequent basis, then I
23 believe changes in the distribution of plant species
24 will occur and I believe it will favor those species
25 which do better with deeper water and longer
225
1 hydroperiods.
2 Q. What species could you give us as examples?
3 A. As examples, I would say that white water
4 lily would benefit. It actually may be the only
5 species that I can give you at this point that would
6 benefit. The other species of plants are widely
7 distributed in the Refuge right now.
8 Q. Pardon me for just guessing here, far out
9 of my realm of expertise, but I have seen reference
10 to bladderwort here and there.
11 A. Bladderwort is very common under current
12 conditions, so I don't know if the occurrence of
13 bladderwort would substantially change under the
14 modification or not.
15 Q. Thank you, sir.
16 What is your understanding of the dominant
17 vegetative species that made up Loxahatchee peat?
18 A. Loxahatchee peat is characterized by the
19 presence of fibers that are identified as white water
20 lily in origin.
21 Q. Now, sir, obviously either the Refuge nor
22 Dr. Maffei nor the Corps can control the amount of
23 rainfall that falls.
24 A. Correct.
25 Q. And so these proposed maximums that you
226
1 have described are the levels that control man's
2 decisions to or human decisions to release water or
3 not?
4 A. With regard to one aspect of the operation
5 of the facility.
6 Q. Now have you made a study to determine the
7 likelihood of any part of the Refuge actually being
8 dewatered in consequence of predictable drought
9 conditions?
10 A. I have not.
11 Q. Obviously your purpose is to try to keep as
12 much of the Refuge wet within these maximum ranges as
13 possible for as long as possible; is that correct?
14 A. That's a purpose I have, yes.
15 Q. And if you have abundant rainfall,
16 presumably you will achieve that goal?
17 A. Presumably we will.
18 Q. And yet there have been years in the
19 Refuge's history in which I suppose rainfall would
20 not have been sufficient either in the Loxahatchee or
21 in the areas that augment the Loxahatchee's water
22 supply to achieve that let's say a 15.7 foot level;
23 is that not so?
24 A. I have never done or seen an analysis --
25 let me rephrase that.
227
1 I don't recall having seen an analysis that
2 would look at that.
3 Q. All right. Well, then has it been your
4 purpose and is it your purpose now that to fix these
5 maximum stages in such a level that the Refuge would
6 be relatively at least impervious to predictable
7 drought conditions in the area?
8 MS. PONZOLI: Object to form.
9 THE WITNESS: One of my purposes was to
10 establish regulation stages in the Refuge
11 whereby the operation resulting from the
12 regulation schedule did not exacerbate problems
13 caused by drought conditions.
14 BY MR. SMITH:
15 Q. Dr. Maffei, to your knowledge, was the
16 presence of an interior dike inside the Refuge
17 relative to the L-7 canal ever a part of the design
18 of this WCA-1?
19 A. It's my understanding that early planning
20 did have the dike interior to the canal.
21 Q. And what, if you understand, if you know,
22 what happened to that?
23 A. It's my understanding that the Fish &
24 Wildlife Service requested the dike to be put
25 exterior to the canal.
228
1 Q. And do you know why that request was made?
2 A. My understanding and interpretation of what
3 I have seen is that that request was made because
4 Fish & Wildlife Service personnel dealing with the
5 issue of planning the management of the Refuge wanted
6 the option of further subdividing the area with
7 canals and further compartmentalizing the area.
8 And they believed that having the perimeter
9 canals interior to the levees would facilitate that
10 activity were it to be undertaken.
11 Q. Were those interior compartments ever
12 created?
13 A. No.
14 Q. Do you know why?
15 A. I don't know why.
16 Q. Had the dike been placed on the Loxahatchee
17 side of the L-7 canal rather than on the EAA side, it
18 would be possible for the S-5A structure to shunt
19 water around Loxahatchee without introducing it to
20 Loxahatchee at all; would it not?
21 A. The L-7 levee is within the boundaries of
22 Loxahatchee. It is west of the L-7 borrow canal.
23 I don't know the degree to which it would
24 have been possible to shunt the water around the
25 Refuge had that canal been exterior to the marsh.
229
1 Q. But nothing in the canal itself would have
2 prevented it?
3 A. I don't know that the canal as designed
4 would have had the capacity to move that water or
5 not.
6 Q. But what you refer to principally as the
7 design function of the S-5A structure, I suppose, you
8 don't know whether that structure is designed in such
9 a way that it could have shunted water around
10 Loxahatchee had the dike been inside the canal?
11 What is it that's uncertain?
12 A. Well, there is a number of things
13 uncertain.
14 I don't know what the original
15 configuration of the S-5A discharge would have been.
16 As I recall, the S-5A pump was originally located on
17 the lake -- excuse me, the S-5 pump. The pump was
18 relocated to the north end of the Refuge and given
19 the indentifier of S-5A.
20 I don't know, I have not reviewed
21 engineering drawings for what the facility might have
22 looked like or operated like had the canal been
23 exterior to the Refuge.
24 Also, there are borrow canals associated
25 with other levees in the system and those canals are
230
1 not used to route water south from structures. In
2 some instances, the canals, it's my understanding
3 were borrow canals to create the levees; hence, the
4 nomenclature using the letter L in abbreviation in
5 precedent to a number.
6 So it's my belief as I sit here now that
7 the important structures were the levees, not the
8 canals, and therefore I don't know what the capacity
9 of the canals throughout that water around the Refuge
10 would have been.
11 Q. But if one's purpose were to avoid nutrient
12 reliance upon EAA water, would it not serve that
13 purpose to have the L-7 levee on the Loxahatchee side
14 of the canal?
15 MS. PONZOLI: Object to form. I think it's
16 an argumentative question and it presumes things
17 that are not part of the record.
18 THE WITNESS: I don't know that anyone was
19 relying on nutrient-laden water from any place.
20 I answered the question as to why I
21 believed the canals were put interior to the
22 levees rather than exterior.
23 BY MR. SMITH:
24 Q. But if there were a levee built today
25 separating the Loxahatchee from the canal and if it
231
1 were otherwise practicable at S-5A to discharge water
2 into the canal without discharging it into the
3 Loxahatchee, if Loxahatchee had another source of
4 water, it could avoid reliance upon EAA water; could
5 it not?
6 MS. PONZOLI: Object to form. It's a
7 compound question, it's argumentative and
8 assumes things that I don't know how you would
9 accomplish.
10 THE WITNESS: It's an interesting idea.
11 BY MR. SMITH:
12 Q. Has it never occurred to you?
13 A. Yes, it has occurred to me.
14 Q. Have you talked to the Corps of Engineers
15 about it?
16 A. No --
17 MS. PONZOLI: The Cooperative has made this
18 proposal a number of times, Mr. Smith. It would
19 have to have occurred to all of us.
20 THE WITNESS: I don't recall talking to the
21 Corps about it, no, sir.
22 BY MR. SMITH:
23 Q. Who have you talked to about it?
24 A. The only recollection I have of talking to
25 anyone about that is a number of years ago talking
232
1 with Mr. Neely about that.
2 Q. And what did you say and what did Mr. Neely
3 say?
4 A. This is probably in 1987 or 1988, and I
5 don't recall, other than I looked at it and said
6 something along the lines of if a levee were
7 constructed east of the L-7 canal down to one of the
8 S structures, perhaps surface discharges would not
9 come into the marsh. And I also recall trying to
10 estimate what the cost of such an endeavor was, and I
11 don't recall at this point what my estimates were.
12 And I don't recall Mr. Neely's response
13 other than thinking it was kind of an unlikely
14 scenario. I also thought it was an unlikely thing to
15 do.
16 Q. Why?
17 A. Because of the possibility that it would
18 interfere with the ability of the Corps to meet flood
19 control objectives.
20 Q. For the populations at the coast?
21 A. For primarily the areas served by the S-5A
22 and S-6 structures.
23 Q. Do you include Loxahatchee in that?
24 A. No, I am referring to the drainage basins
25 which those structures serve.
233
1 Q. You are referring to 2A? You are referring
2 to area 2A?
3 A. I am referring to the drainage basins which
4 the S-5A and S-6 facilities serve.
5 Q. Would you identify those for me?
6 A. The S-5A basin, the S-6 basin.
7 Q. But is the -- my lack of knowledge -- is
8 basin what you draw from or pour to?
9 A. Basin is what you draw from.
10 Q. Okay. So you are talking about the areas
11 north and northwest of the Refuge?
12 MS. PONZOLI: He is talking about you guys.
13 THE WITNESS: I'm talking about those
14 basins, one which is west of the Refuge and one
15 which is to the northwest.
16 BY MR. SMITH:
17 Q. All right. So that was the thing that made
18 it an unlikely scenario, the ability of the Corps to
19 serve the needs of the EAA and other constituents of
20 the project north and northwest of the Loxahatchee;
21 is that right?
22 A. That was one of the things in my mind that
23 would have been problematic with doing that kind of a
24 project.
25 Q. You just heard Ms. Ponzoli say that the
234
1 Co-Op has proposed several times the construction of
2 such a canal.
3 Were you aware of that, or such a levee?
4 A. I believe I was aware that something like
5 that had been suggested. I am not, my understanding
6 was that it was not quite exactly the kind of thing
7 that I had looked at briefly, but something along
8 that line.
9 Q. And you never had a conversation with
10 anybody at the Corps of Engineers about this?
11 MS. PONZOLI: Object to form. I think it's
12 argumentative. It's been asked and answered.
13 THE WITNESS: I don't recall having a
14 discussion with anybody about this at the Corps
15 of Engineers.
16 BY MR. SMITH:
17 Q. And to your knowledge, Mr. Neely never has
18 either?
19 A. I have no knowledge that he has.
20 Q. And do I take it your testimony is that you
21 have no recollection of having discussed this idea
22 with anyone other than Mr. Neely?
23 A. I don't have any recollection of that. I'm
24 not saying it might not have happened. I don't have
25 any recollection of it.
235
1 Q. I asked Mr. Neely in his deposition whether
2 the Loxahatchee could get along entirely without EAA
3 water. He may have related to you that I asked him
4 that and told you what he said.
5 Did he?
6 A. I don't recall if he said that to me.
7 Q. Let me ask you, sir, if you could control
8 in the fashion that you have in the recent past or as
9 is proposed for the schedule discharges from the 10
10 structures so that you did not have to discharge
11 against your will, could the Loxahatchee get along
12 without EAA water altogether if mechanically that
13 could be arranged?
14 MS. PONZOLI: I guess I have some objection
15 to EAA water. I believe I have noted it a
16 number of times.
17 BY MR. SMITH:
18 Q. Water from the -- I'm not talking about EAA
19 water in any proprietary sense. You know I'm
20 referring to water that comes from the EAA.
21 Is that objectionable?
22 MS. PONZOLI: You mean just water that
23 flows through the S-5A and the S-6?
24 MR. SMITH: All right, thank you, that's
25 better.
236
1 BY MR. SMITH:
2 Q. Could you get along without water flowing
3 from the S-5A and the S-6 if you had liberal control
4 over discharges from the S-10s?
5 A. Get along in what manner?
6 Q. Achieving the management goals of the
7 Loxahatchee National Wildlife Refuge.
8 A. The only analysis that I have seen that I
9 have used to interpret that type of a question is
10 present within Work Order 32, and in Work Order 32 it
11 indicates that on average, over the period of record
12 utilized for the analysis that I'm discussing, there
13 was a net addition of water to the Refuge in excess
14 of rainfall of approximately 7,000 or so acre feet
15 per month, indicating that in order to maintain the
16 stages that occurred during the period of record that
17 was looked at, water discharged from S-5A or S-6 or
18 some other source was necessary to maintain those
19 water levels.
20 That would suggest to me that some water in
21 addition to rainfall would be needed to maintain the
22 water levels that were maintained historically. I
23 haven't done an analysis, nor have I seen one, to
24 indicate how the water levels within the Refuge would
25 respond under some other type of management criteria
237
1 for the S-10 structures.
2 Q. Can you recall from memory what period of
3 time was embraced within this 7,000 acre feet average
4 as reported by Work Order 32?
5 A. It would be easy to look at it, but I think
6 it was approximately the period that extended from
7 1960 -- no, I don't remember if it was '62 or '67.
8 Sometime in the sixties through about 1987, I
9 believe, but I don't remember the exact period.
10 Q. Those were fairly dry years for the
11 Loxahatchee, were they not?
12 A. Which years?
13 Q. '62 to '87.
14 A. Dry in what sense?
15 Q. Rainfall.
16 A. Well, as I recall, the average rainfall for
17 that particular period was less than 50 inches per
18 year, which would have been less than, for example,
19 the 60 inches that is often attributed to the area.
20 Q. So the answer is yes?
21 A. In some years there was less rain.
22 Q. All right. I'm just trying to understand
23 the 7,000 acre feet, and I appreciate your using that
24 for analytical purposes with my main question, but
25 that's influenced by the amount of rainfall that fell
238
1 on the Loxahatchee during the period in which this
2 average was calculated, obviously?
3 A. That's an input, yes.
4 Q. And it is influenced by the discharges from
5 the S-10 structures during the period in which this
6 average was calculated, is it not?
7 A. That's correct.
8 Q. And I believe you said yesterday that there
9 have been occasions in which the Corps says we need
10 to release water from the S-10s to make room for an
11 anticipated discharge into the Loxahatchee?
12 A. I believe I indicated today that there have
13 been communications indicating that the Corps wanted
14 to discharge water.
15 Q. To make room for further water to come into
16 Loxahatchee is what I understood you to say.
17 Is that incorrect?
18 A. In a very loose and broad sense, I guess
19 that could be a correct statement.
20 Q. Well, I was asking you yesterday about the
21 Corps insisting on or requesting or telling you about
22 necessary discharges from the 10-A in order to serve
23 water constituencies to the south, and I took it to
24 be that your answer yesterday was no, that wasn't the
25 case, it was to make room in the Loxahatchee for
239
1 discharges into the Loxahatchee from the S-5A.
2 Now straighten me out on that.
3 A. I'll do it if I can.
4 The regulation schedule which is used to
5 operate the S-10 structures, it was generally not to
6 my knowledge developed to benefit downstream areas.
7 The schedule was designed with consideration of the
8 impacts to water levels in area one.
9 Reducing water levels at some point prior
10 to the onset of the rainy season and hurricane season
11 I believe is an objective that the Corps has.
12 Lowering water levels in January is not done
13 necessarily to make room for anticipated rainfall,
14 for example, in February, but is done to effect a
15 gradual decline of water levels to minimize adverse
16 impacts to the marsh.
17 A low stage in the Refuge is desirable I
18 believe in the opinion of the engineers so that when
19 the rainy season does begin, there is capacity within
20 the area to hold storm discharges.
21 I hope that gives you the sense by which
22 your earlier characterization is somewhat different
23 than the way I view it.
24 Q. Thank you.
25 MS. PONZOLI: Mr. Smith, if I may --
240
1 MR. SMITH: Let me ask one more question
2 and then we'll shut down.
3 MS. PONZOLI: I have another attorney
4 coming to meet with me. That's the only reason.
5 Otherwise, I wouldn't care when we broke.
6 MR. SMITH: Fine.
7 BY MR. SMITH:
8 Q. Would Dr. Maffei's purposes for the Refuge
9 be served in the future, assuming they were favorably
10 received by the Corps of Engineers and other affected
11 persons, by fewer discharges from the S-10 structures
12 and fewer discharges by the S-5A and S-6 structures?
13 MS. PONZOLI: Object to form.
14 THE WITNESS: Well, without trying to
15 understand what fewer is, as you may be aware,
16 we have asked that operation of the S-10
17 structures be modified to reflect a new interim
18 regulation schedule.
19 Whether that would result in less water
20 being discharged or not, I haven't done an
21 analysis on that. I believe somewhat less water
22 would be discharged through the S-10 structures
23 should the interim regulation schedule be
24 changed to the one currently being evaluated.
25 We have also supported the idea of
241
1 redirecting S-6 discharges such that they never
2 enter Loxahatchee Refuge.
3 To the extent that I have indicated to
4 people that redirecting S-5A flows causes me
5 concern, because a thorough analysis of the
6 quantity of surface discharges necessary in the
7 Refuge to maintain the types of water levels
8 that I think should be maintained has not been
9 done, I have not supported redirecting S-5A
10 discharges.
11 BY MR. SMITH:
12 Q. Well, you certainly would not support it
13 without a thorough study of the consequences, would
14 you?
15 A. I certainly would not.
16 Q. And if there were benefits to be achieved
17 by redirecting with such mechanical modifications to
18 the levee system as were deemed necessary from an
19 engineering point of view, you would not support even
20 those problematic benefits without a thorough study
21 of their reality, would you?
22 MS. PONZOLI: Object to form.
23 THE WITNESS: I'm afraid you lost me on
24 that question. The general sense that I get is
25 whether I think a thorough study is necessary
242
1 before any modification is made. The answer
2 would be yes.
3 BY MR. SMITH:
4 Q. Do you think a thorough study of that is
5 desirable?
6 A. Of redirecting S-5A discharges?
7 Q. Of alternatives that would permit
8 redirecting S-5A discharges.
9 MS. PONZOLI: Objection. I think that's a
10 fundamental issue in this litigation, whether
11 such things have or haven't been done.
12 THE WITNESS: I think there are plans to
13 redirect S-5A discharges.
14 BY MR. SMITH:
15 Q. You have not supported them?
16 A. I have not supported plans to redirect
17 substantial amounts of S-5A discharges away from the
18 Refuge.
19 I have supported plans to redirect S-5A
20 discharges.
21 Can we take a break now?
22 Q. Wait, just a moment.
23 The plans that you have supported for the
24 redirection of S-5A discharges, have you done a
25 satisfactory environmental study of the consequences
243
1 of that?
2 A. There have been a large number of documents
3 written regarding that plan.
4 Have I done a satisfactory environmental
5 study as to the consequences?
6 I believe that the consequences of the plan
7 that currently exist are that the Refuge would
8 benefit.
9 Q. So your opinion is that a satisfactory
10 study of say the mercury aspects of that proposal has
11 been made?
12 MS. PONZOLI: Mr. Smith, we are really
13 ranging far afield. I mean we said one more
14 question and we are going to break. I think you
15 are pretty wide ranging here in what you are
16 asking.
17 MR. SMITH: Let me ask about five questions
18 and we'll shut down.
19 MS. PONZOLI: Well, I'm going to object to
20 the mercury question being asked at this
21 juncture. We said we were going to break with
22 the hydrology of the 5-A.
23 MR. SMITH: All right, let's take a break
24 now. Thank you for your patience. 1:00?
25 MS. PONZOLI: That's fine.
244
1 (Thereupon, a luncheon recess was taken.)
2 BY MR. SMITH:
3 Q. Dr. Maffei, to continue the questions about
4 potential satisfactory water sources for the Refuge,
5 is the Lake Okeechobee water of a quality that would
6 be satisfactory for the Loxahatchee Refuge if it were
7 made available either by staging or by mechanical
8 arrangement?
9 MS. PONZOLI: Object to form. I really
10 don't know what you mean by satisfactory.
11 BY MR. SMITH:
12 Q. Would it meet nutrient content standards
13 that in Dr. Maffei's opinion would be consistent with
14 the management goals of Loxahatchee?
15 A. The information that I have seen regarding
16 the quality of water either in Lake Okeechobee or
17 discharged from various points around the lake
18 indicate to me that that water is not of a quality
19 that I would consider adequate for the Refuge.
20 Q. Can you identify, however remote
21 geographically it may be, a water body of some
22 significant size that would have water quality of the
23 character that I have described?
24 MS. PONZOLI: I'm going to object to that
25 question as wholly irrelevant to these
245
1 proceedings. The farmers have polluted the
2 water within the lake and within the water
3 discharged from the EAA, which doesn't mean that
4 we have to go and find some other water source
5 where there isn't pollution or other nutrients
6 added to it. I just think it's an enormously
7 irrelevant question.
8 THE WITNESS: I'm not aware what you mean
9 when you say water quality that you described.
10 BY MR. SMITH:
11 Q. Water that contains nutrients within the
12 level that would be successful achievement of the
13 management goals of the Loxahatchee Refuge.
14 MS. PONZOLI: Same objection.
15 THE WITNESS: And your question is?
16 BY MR. SMITH:
17 Q. Name a water body that's got the nutrient
18 content that meets those specifications in Florida.
19 MS. PONZOLI: Same objection.
20 THE WITNESS: In Florida, I'm not familiar
21 in general with the quality of water in various
22 water bodies throughout Florida.
23 BY MR. SMITH:
24 Q. Do you have an understanding as to whether
25 waters from the EAA canals are back-pumped into Lake
246
1 Okeechobee at the present time?
2 A. My understanding is that on occasions water
3 from the EAA is pumped into Lake Okeechobee through
4 various structures around the rim of the lake.
5 Q. Have you an opinion as to whether Lake
6 Okeechobee from sources other than the EAA would be
7 capable of supplying water to the Refuge through any
8 available or made available canal that would be of a
9 nutrient content compatible with the management goals
10 of Loxahatchee?
11 MS. PONZOLI: Do you understand the
12 question, Dr. Maffei?
13 THE WITNESS: Not entirely.
14 MS. PONZOLI: May I hear it again? I
15 thought maybe if it were just I -- may I hear
16 the question?
17 (Thereupon, a portion of the record
18 was read by the reporter.)
19 MS. PONZOLI: Can you fix it, Mr. Smith, or
20 do you want me to put my objection in the
21 record?
22 MR. SMITH: I think it's okay.
23 MS. PONZOLI: I object to the form of the
24 question. I think it's convoluted and confusing
25 and extremely difficult to understand.
247
1 BY MR. SMITH:
2 Q. Have you an opinion as to that, Dr. Maffei?
3 A. I can't say that I have ever given that
4 much thought.
5 Q. Are you aware of any water body in the
6 vicinity that is a potential source of water to the
7 Loxahatchee?
8 MS. PONZOLI: Asked and answered.
9 MR. SMITH: I don't believe so.
10 MS. PONZOLI: You think this is different
11 from the other question?
12 MR. SMITH: I asked him previously in
13 Florida. I'm asking him now in the vicinity.
14 MS. PONZOLI: How is the vicinity not in
15 Florida?
16 THE WITNESS: As the geography exists
17 today, we are talking?
18 BY MR. SMITH:
19 Q. Yes.
20 A. Well, a potential source of water for the
21 Refuge is Lake Okeechobee. It's my understanding
22 that at times water has been delivered to the area
23 from Lake Okeechobee.
24 Q. To the area, meaning?
25 A. Well, water has come into Conservation
248
1 Area-1 from the lake generally to meet water supply
2 needs, so I would have to say that that is a
3 potential source that, as I recall, has in fact been
4 used at times to meet specific water supply needs.
5 Q. Do you have an opinion as to the quality of
6 that water independent of any nutrient content it may
7 have in consequence of discharges from the EAA?
8 I believe you said you had never thought
9 about it.
10 MS. PONZOLI: I'm going to object to form.
11 Mr. Smith, these are very confusing questions,
12 and I don't know that you intend them to be that
13 way, but they are. They just simply are, and if
14 they are to us, then they are at one level.
15 THE WITNESS: What I said I never thought
16 about was whether there was some other water
17 body as a potential source that has clean water
18 to meet the needs of the Refuge in response to a
19 hypothetical question that you posed to me, and
20 my response was that I have never thought of
21 that, meaning I have never played that
22 hypothetical game to think of where else could
23 we get the water in order to avoid taking the
24 water that the EAA is polluting and discharging
25 into the Refuge? I have never thought about
249
1 that.
2 BY MR. SMITH:
3 Q. Well, have you an opinion as to whether
4 Lake Okeechobee, independent of any nutrient content
5 that the farmers contributed by contemporaneous
6 pumping, would be satisfactory to the standards of
7 the Loxahatchee Refuge?
8 MS. PONZOLI: That's an impossible question
9 to answer, Mr. Smith.
10 MR. SMITH: He can say so.
11 MS. PONZOLI: How do you chemically
12 eliminate that portion that the EAA has added?
13 It's just an impossible question, and I
14 would respectfully submit that it is not that
15 difficult to ask impossible questions that can't
16 be answered.
17 MR. SMITH: Well, he will have to tell me
18 why it's impossible.
19 BY MR. SMITH:
20 Q. I'm saying if the farmers don't add another
21 drop of water to Lake Okeechobee, would the water
22 very likely, probably be good for the Loxahatchee?
23 A. The water in the lake?
24 Q. Yes.
25 A. The water in the lake has nutrient levels
250
1 that are in excess of what I believe is good for the
2 marshes of the Everglades.
3 Q. All right. Let's wrap up then the question
4 of hydrogen sulfide.
5 When and where did you become familiar or
6 did your sense of smell become discretely familiar
7 with the smell of hydrogen sulfide, in a laboratory
8 or in the field?
9 A. Well, as I sit here right now, my most
10 accurate or the best answer I can give you is that I
11 probably became familiar with that smell at being
12 associated with that compound when I was in high
13 school, approximately 1971, 1972.
14 Q. Was that in the laboratory or in the field?
15 A. It was a laboratory situation, I believe.
16 Q. Have you ever encountered it in the field
17 except Loxahatchee?
18 A. I have probably encountered that odor, I
19 believe I have, in Conservation Area 2A. I believe I
20 have encountered that odor in the field in locations
21 in Illinois. Perhaps other places, but I don't have
22 specific --
23 Q. What sort of sites in Illinois?
24 A. I did research in some cypre