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 cypress swamps or 25 flooded bottom areas in Illinois. 251 1 Q. Either through personal experience or what 2 you may have read, do you have any knowledge of the 3 presence of that odor in the Okefenokee Swamp? 4 A. I don't recall reading anything about the 5 Okefenoekee Swamp, nor have I been there. 6 Q. From your, either the experience that you 7 have described or literature that you may have read, 8 is that odor commonly associated with a swamp? 9 A. It's my impression that it's not unusual to 10 have that odor associated with a swamp. 11 MR. SMITH: Let me hand you Maffei 12 Exhibit S, and I ask that this document, Work 13 Order 32, be identified as Exhibit S to the 14 deposition of Dr. Maffei. 15 Before we do that, let me hand you Exhibit 16 B-2 and I ask that this letter by Secretary 17 Warne, Secretary of the Interior, dated 18 April 13, 1948 to General Wheeler, Chief of 19 Engineers of the Army, be marked as Exhibit B-2 20 to the deposition of Dr. Maffei. It was 21 similarly marked in the Neely deposition. 22 (The documents were marked 23 Maffei Exb. No. S and B-2.) 24 BY MR. SMITH: 25 Q. Calling your attention to page four and 252 1 asking you to look at the paragraph beginning "It is 2 apparent," and then reading the letter for context to 3 the extent that you are comfortable to know the 4 meaning of the paragraph "It is apparent," I want to 5 ask you whether the Fish & Wildlife Service, the 6 Department of the Interior did not anticipate in 7 consequence of the construction of the Central and 8 Southern Florida Flood Control Project that the 9 characteristics of the waters with respect to their 10 occurrence, movement and quality would be appreciably 11 changed by the proposed flood control and other works 12 in Southern Florida. 13 MS. PONZOLI: Well, as we have discussed on 14 numerous occasions, Mr. Smith, the documents say 15 what they say, and Dr. Maffei may answer as he 16 feels comfortable. 17 I, for one, would certainly be gratified to 18 see the farmers make these arguments to 19 Congress. It would be very amusing and 20 interesting. 21 THE WITNESS: Is there a question? 22 MR. SMITH: Why don't you read it back? 23 (Thereupon, a portion of the record 24 was read by the reporter.) 25 THE WITNESS: Thank you. 253 1 I'm looking over the letter to see if I can 2 determine if they indicate in here what 3 particular characteristics they are referring 4 to. 5 Okay, the letter does not identify what 6 characteristics of quality would be appreciably 7 changed, but that statement, "It is apparent 8 that the characteristics of the waters with 9 respect to their occurrence, movement and 10 quality will be appreciably changed by the 11 proposed flood control and other works in 12 southern Florida," that statement is in here. 13 So it appears to me that the author was 14 anticipating changes. 15 BY MR. SMITH: 16 Q. And having now read the entire letter, can 17 you further define from the context in which that 18 statement is made what kinds of changes he is 19 speaking of in terms of water quality? 20 A. I did not get that from a review of the 21 letter. There are some parts of it which it's 22 difficult to read. 23 Q. Well, let me call your attention to the 24 last paragraph on the same page, stating that "The 25 past records of stream and canal flow, water table 254 1 elevations and variations in chemical quality would, 2 in many areas, remain of value only as records of the 3 antecedent conditions." 4 Does that identify to you the water quality 5 characteristics that the writer observed in the 6 immediately preceding paragraph would be appreciably 7 changed? 8 MS. PONZOLI: Mr. Smith, you read very well 9 and I appreciate your efforts to educate us on 10 what you believe is the history of all of this, 11 but I continue to object to your spending long 12 and lengthy depositions reading documents to us 13 or having us read them to you. And that's the 14 sum total in my opinion of what's going on. 15 THE WITNESS: Well, he indicates canal 16 flow, water table elevations and variations in 17 chemical quality. That's basically what he 18 assumed, when in the above paragraph he said 19 characteristics of the water's quality. 20 BY MR. SMITH: 21 Q. Would be appreciably changed, is that the 22 way you read it? 23 MS. PONZOLI: The words read the same. We 24 all speak English and read English here. 25 THE WITNESS: That's what he says. He 255 1 anticipates some would be appreciably changed. 2 BY MR. SMITH: 3 Q. Did he in two paragraphs earlier make an 4 observation that the Fish & Wildlife Service had 5 considered the report of the Army Engineers and 6 acknowledged that it considers fish and wildlife as 7 adequately as it can in light of the preliminary 8 nature of the Service's findings? 9 Do you take that to be an expression that, 10 followed by the balance of that paragraph, that asks 11 that Fish & Wildlife be consulted to insure minimum 12 damage to and maximum benefits for wildlife 13 resources? 14 A. That appears to be what it says. Some of 15 these words are difficult to read. 16 Q. Okay, now let's turn then to -- thank you 17 very much. Let's turn to Exhibit S. 18 This, of course, is Work Order 32, is it 19 not, the report of Work Order 32? 20 A. This is not what I consider all of Work 21 Order 32. 22 Q. What's missing? 23 A. What's missing is a synthesis report which 24 is part of the final report of Work Order 32, a 25 description of the Lox Hydro Model, the Everglades 256 1 bibliography, the report on snail kites. 2 There is a couple other parts to that, 3 future research needs. There is probably a few more, 4 but -- 5 Q. Okay. Well, I remember seeing the 6 synthesis report I believe at Mr. Neely's deposition, 7 and I guess it's my inadequate preparation for this 8 one that I don't have the others, because I'm sure 9 they have been produced. 10 MS. PONZOLI: I'm sure they have. 11 BY MR. SMITH: 12 Q. But referring to this and calling upon your 13 knowledge of these missing ones as may be necessary, 14 would you tell me just generally first how the wading 15 birds are doing in Loxahatchee relative to their rate 16 and distribution in the past and relative to your 17 management aspirations for the future? 18 MS. PONZOLI: You mean at the very present 19 time, Mr. Smith? Is that your question? 20 MR. SMITH: Yes. 21 THE WITNESS: Their rate of what? 22 BY MR. SMITH: 23 Q. Number. 24 A. Well, based on my observations the last 25 time I was in the marsh, there were a considerable 257 1 number of great blue herons present relative to the 2 numbers that I have seen at this time in previous 3 years. 4 I would in a general sense say that the 5 number of great egrets that I saw on my last trip 6 into the field indicated that their occurrence was 7 not substantially different from the typical type of 8 conditions out there the last several years. 9 My impression the last time I was out there 10 was that small wading birds were not present in the 11 numbers that I had expected to see, although that 12 could be accounted for by my desire to see the 13 nesting season begin, and it's probable that it was 14 just a little early to really see that developing in 15 full the last time I was in the marsh. 16 Q. How long ago was that? 17 A. About two weeks ago. 18 Q. What are the small wading birds, little 19 blue heron, white ibis? 20 A. Little blue heron, white ibis, snow egrets, 21 tri-colored herons, sort of a medium sized, I guess, 22 but I put it in that category for purposes of this 23 discussion. 24 Q. Where do the woodstorks come in, 25 classified? 258 1 A. They are large. 2 Q. What do you observe about the woodstorks in 3 the Refuge at this time? 4 A. I have seen woodstorks out in the Refuge 5 recently. I am not particularly impressed that there 6 is large numbers, nor do I think there is 7 particularly low numbers of woodstorks out there at 8 the present time. 9 Q. Would it be fair to say with the 10 qualification for the small wading birds that the 11 presence of the large birds ranges from typical to 12 considerably above that observed in previous years? 13 A. That's the impression that I received last 14 time I was in the marsh. 15 Q. Do you think that is a consequence of the 16 modified stage levels in the Refuge? 17 A. I like to think that it is. 18 Q. If it's not, it's a happy coincidence? 19 A. That's correct. 20 Q. And one that you will undertake to 21 replicate in future years? 22 A. If I am there, yes, sir. 23 Q. Do you have any other plans to be someplace 24 else? 25 MS. PONZOLI: Are you hoping? 259 1 MR. SMITH: No, I'm growing rather attached 2 to Dr. Maffei. 3 THE WITNESS: And I to you, sir. 4 MS. PONZOLI: We noticed. 5 THE WITNESS: I have had plans to be 6 someplace else since the day I accepted this 7 position. 8 MS. PONZOLI: Don't get too attached. 9 (Discussion held off the record.) 10 BY MR. SMITH: 11 Q. Can you summarize for me the findings of 12 the Work Order 32 with respect to wading birds? 13 A. Well, there is a page titled Conclusions 14 marked DMM 0013593. 15 Q. Okay. Do you agree with those conclusions? 16 A. I agree with the conclusion in the first 17 paragraph. 18 I have no quarrel with the conclusions in 19 the second paragraph. 20 I have no quarrel with the conclusions in 21 the third paragraph. 22 The fourth paragraph relates a number of 23 statistical relationships, and I assume they were 24 done properly. And if that assumption is correct, I 25 would not argue with the conclusions in that 260 1 paragraph. 2 Q. Are there other conclusions in the other 3 documents that I would need to hear of from you to 4 complete my understanding of the conclusions that 5 this report reached? 6 Could you elaborate the conclusions in the 7 missing documents just a little bit? 8 A. Well, this report, this section of it, 9 Response of Wading Bird and Aquatic Macrofauna to 10 Hydrological Conditions and Vegetative Structure of 11 Loxahatchee National Wildlife Refuge, reported on 12 some data collected on wading birds and aquatic 13 macrofauna roughly during the time period of 1990 14 through I think early 1992. 15 There is another portion of the study which 16 looked at responses of vegetation to various 17 environmental parameters, including soil chemistry, 18 water depth, duration of inundation, and did various 19 analyses using satellite image data and data placed 20 in the geographical information system, and there is 21 a report that attempted to look more specifically or 22 in a different way at vegetation and the response of 23 vegetation to environmental parameters. 24 Those documents have conclusions relative 25 to the areas of research that those documents report 261 1 on. I don't know, they may have some conclusions 2 relative to bird and aquatic macrofauna in the 3 Refuge, but that wasn't the emphasis. 4 Q. Okay. Let me point you to a couple of 5 places here and ask you to explain. I'm looking at 6 page 75 of this document. 7 As I am reading that long paragraph at the 8 bottom of 75 there is an interpretation of the bar 9 graph at page 80, which as I understand it in the 10 light shading depicts the number of wading birds 11 generally excluding only cattle egrets present in a 12 particular vegetative cell relative to the predicted 13 presence of wading birds in such a cell. 14 Have I got it right so far? 15 A. I believe you have. 16 Q. And the vegetation communities are defined 17 on page 79, 1 through 18, corresponding to the 18 18 pairs of bar graphs. 19 Is that a correct understanding of what's 20 depicted there? 21 A. Yes. 22 Q. And would it be -- let's just take the 23 first and the sixth, since they represent different 24 phenomena evidently, bar graph. 25 Do I correctly interpret that to mean that 262 1 the total wading birds actually present in the 2 vegetative cell coded to the number zero relative to 3 what was predicted there was a fraction higher than 4 predicted, whereas the opposite was true in 5 vegetative class number six? 6 A. The graph would indicate that birds were 7 present in cells with class zero at a frequency 8 higher than cells with class zero existed, and the 9 converse is true for vegetation class six. 10 Q. It's the second part of that equation that 11 I guess I got wrong, because I didn't understand what 12 you said. 13 I thought this was a comparison of what was 14 predicted, a comparison of what birds were present in 15 a particular cell or classification of cells as 16 compared to what was predicted for those cells 17 assuming an even distribution of the birds over all 18 the cells. 19 A. Well, on page 80 it doesn't say anything 20 about the particular number of birds. I can read 21 what you indicated was the paragraph explaining that 22 if you want. 23 What this looks like to me is a comparison 24 of a frequency -- well, it is what it is, the number 25 of wading birds, and the point of showing the 263 1 proportion of vegetation classes present in 2 relationship to that I think, I interpret it to be an 3 indication of whether or not birds were utilizing one 4 type of cell as indicated in the legend on page 80 in 5 numbers greater than the appearance of that type of 6 cell, which would suggest -- 7 Q. Relative to the whole? 8 A. Yes. 9 Q. Okay, thank you. I guess I was misled by 10 page 75, the sentence that begins on the fifth line, 11 "Cells with a high proportion of vegetation class six 12 were used less than expected by birds." 13 Would it be correct for me to understand 14 that by comparing the actual presence of wading birds 15 as a general class in this particular graph to the 16 total number of vegetation cells of the particular 17 vegetative characteristic coded to that bar graph, 18 what is being compared is what was present compared 19 to the relative amount of vegetative class in the 20 Refuge as a whole? 21 A. Well, without referring back to the method 22 to see what statistical analysis was