326
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 III
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 - - -
Wednesday, March 23, 1994
24 319 Clematis Street, Suite 500
West Palm Beach, Florida 33401
25 9:25 a.m. - 5:00 o'clock p.m.
327
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
KAREN PETERSON, ESQUIRE
10 and
JEFFREY J. WARD, ESQUIRE
11 In-House Counsel
Sugar Cane Growers
12
On behalf of the Intervenor United States:
13
U.S. Attorney's Office
14 155 South Miami Avenue
Suite 600
15 Miami, Florida 33130
By: SUZAN HILL PONZOLI, ESQUIRE
16
328
1 I N D E X
2 - - -
3 WITNESS: DIRECT CROSS REDIRECT RECROSS
4 Mark D. Maffei, Ph.D.
5 By Mr. Smith 330
By Mr. Gaines 387
6
7 - - -
8 E X H I B I T S
9 - - -
10
NUMBER PAGE DESCRIPTION
11
Maffei Exhibit 1 398 Map of Loxahatchee National
12 Wildlife Refuge
13 Maffei Exhibit 2 480 US Witness Disclosure
re Dr. Mark Maffei
14
329
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 THE WITNESS: Before we start, on the
9 record, I took this exhibit home last night as
10 you asked me to do, and something that I have
11 noticed about it yesterday afternoon when you
12 first gave it to me struck me as having some
13 significance yesterday evening, and that is that
14 there are parts of this document which reflect
15 conversations which I have fairly strong
16 memories of and other portions that I have no
17 recollection of at all.
18 But in addition, the list of attendees that
19 is on here is not the list of names that I could
20 have reproduced had you asked me. I would have
21 left off a number of the people that this
22 document indicates participating in the meeting
23 and I probably would have inserted at least one
24 person who I would have thought had been there
25 that this list does not include.
330
1 Also, you indicated yesterday that this
2 meeting took place the same day as the hearing
3 at which Governor Chiles appeared before Judge
4 Hoeveler. I would have thought that that
5 hearing had taken place a month prior to this.
6 And as that reflects perhaps some
7 shortcomings of my memory with regard to events
8 of this period, I just wanted to let you know
9 that I noticed that in looking at this.
10 DIRECT (Mark D. Maffei, Ph.D.)
11 BY MR. SMITH:
12 Q. We'll come back to the personnel, but did
13 you resolve the question of the date to your
14 satisfaction?
15 A. I didn't do anything to resolve the
16 question of the dates, sir. I still, my recollection
17 is that that hearing occurred probably in April of
18 that year and this meeting is, this exhibit is dated
19 May 21 of that year, so I don't recall if my memory
20 just might not be very accurate with regard to
21 certain details of what occurred --
22 Q. Thank you.
23 A. -- in that time period.
24 Q. What's the one name you would add?
25 A. I would have probably thought that Frank
331
1 Nearhoff attended this meeting, and he is not on
2 there.
3 Q. And who is he?
4 A. He is an individual for at that time the
5 Department of Environmental Regulation. There were
6 meetings he attended and meetings he didn't. I would
7 have probably indicated that I thought he was there.
8 MR. GAINES: Can I just ask the court
9 reporter what these exhibits have been marked
10 as?
11 MR. SMITH: This is Exhibit K.
12 MR. GAINES: Thank you. That's both
13 meetings together?
14 MR. SMITH: Yes.
15 MR. GAINES: Thank you.
16 BY MR. SMITH:
17 Q. Dr. Maffei, yesterday as a preliminary
18 matter in the orientation toward this exhibit and the
19 conversations that took place according to this
20 document May 21, you said that at this point there
21 was, as I understood you, some general agreement
22 between the federal representatives on the -- is it
23 called the Technical Committee?
24 A. I don't recall it being given a specific
25 name. We were referred to as the Technical Group, I
332
1 think. We were technical representatives from
2 various agencies participating in these discussions.
3 Q. As opposed to the policy group?
4 A. As opposed to those individuals who were
5 meeting to discuss policy issues.
6 Q. You said that there was some general
7 agreement coming into this meeting about the interim
8 and/or long-term criteria, numerical criteria for
9 Loxahatchee.
10 Did I understand you correctly? If so,
11 tell us what that was.
12 A. I think at the time this, as reflected in
13 these notes, at the time that this meeting took place
14 there was agreement of certain concepts such as
15 concept of measuring water quality at 16 interior
16 marsh stations as an indication of the quality of the
17 water over the marsh.
18 Q. And had a number, either interim or long
19 term, been tentatively agreed upon at the time this
20 meeting was assembled?
21 A. I don't recall if that was the case.
22 Q. Well, perhaps this will help us. On page 2
23 under item five, Lox P standards, ENP, the park
24 representative, which I take to be Mr. Scheidt or
25 Mr. Soukup, says "Is DER opposed to setting discharge
333
1 limits?"
2 And DER replied, "Concept is to develop
3 limits for discharge, but measure of compliance is to
4 meet 16 interior marsh stations," at which point
5 Loxahatchee, Dr. Maffei, said "Need to have specific
6 P limits for discharges to WCA-1 through S-5A, S-6
7 and Acme. Must be enforceable."
8 And you testified to that yesterday. I
9 will not repeat it here today, but does that jog any
10 memory of any agreement at that time as to what the
11 interim or long-term limits as measured at the 16
12 stations would be?
13 A. No, not beyond the concept that the 16
14 stations would be involved in some measurement of
15 compliance.
16 Q. And what was the eventual agreement with
17 respect to those limits; that is, the numbers?
18 Do you recall them?
19 A. Not specifically. They are represented by
20 a calculation that's attached to the Settlement
21 Agreement in Appendix B.
22 I can't tell you what that is.
23 Q. Just to refresh your memory, we won't mark
24 this for identification unless it's necessary, I'll
25 show you what appears to be a copy of this Appendix B
334
1 to the Settlement Agreement and ask you if it
2 refreshes your recollection that, generally speaking,
3 the limits as measured at the interior marsh stations
4 or interim limits were between 8 and 22 parts per
5 billion, and the long term by a slightly different
6 measuring method were to be between 7 and 17.
7 Are those numbers registered in your memory
8 as being the agreed-upon limits?
9 A. This is a copy of Appendix B and those
10 numbers are familiar in that context.
11 Q. So obviously by July 11, 1991 when the
12 agreement was finally reduced to writing those
13 numbers had been agreed upon?
14 A. That is correct.
15 Q. My question is did that occur in meetings
16 that you participated in?
17 A. I don't recall if final agreement on that
18 occurred in meetings in which I participated.
19 I recall appearing or being in attendance
20 at meetings when the issues of how to determine or
21 measure compliance were discussed. I don't have a
22 memory of a specific point in time when agreement was
23 reached.
24 Q. Aside from the question of discharge limits
25 which we'll come to in more detail, did you express
335
1 yourself, opinions of your own concerning how the
2 interim and long-term numerical criteria ought to be
3 set or was that principally the responsibility of
4 active participation by other parties?
5 A. My recollection is that I had opinions on
6 how the data should be handled and interpreted to
7 measure compliance.
8 Q. And referring to Exhibit K as may be
9 necessary to refresh your recollection, what opinions
10 did you express on that subject?
11 A. I don't recall all the opinions I may have
12 expressed over a period of three or four months at
13 numerous meetings on this topic.
14 Q. Is that the best you can do?
15 A. No, sir. I'm trying to recall to the best
16 of my ability opinions that I may have held at that
17 time that I expressed in order to answer your
18 question.
19 I had opinions that the marsh water quality
20 data that we had for the period that went roughly
21 from June of 1978 to June of 1979 was all that was
22 needed to establish these limits, because my
23 recollection of the OFW statute indicates that water
24 quality data from the year preceding designation
25 should be used in determining ambient water quality,
336
1 or if that was lacking, the best available data.
2 And the 12 months running from June of '78
3 to June of '79, which I believe is the period that is
4 encompassed by data that we have for marsh stations
5 in the Refuge, almost exactly coincided with what the
6 year preceding OFW designation for Loxahatchee would
7 have been.
8 So I believed it was appropriate to use
9 just that limited data set. So that was one of the
10 opinions that I expressed.
11 Q. What numbers, if any, did you derive from
12 that data set?
13 A. I don't recall deriving numbers from that
14 data set. The data is what the data is. I don't
15 recall if we did any kind of analysis on that data
16 set. We probably did, but I don't recall numbers
17 from that.
18 Q. Nevertheless, referring to Exhibit K, you
19 expressed yourself repeatedly and rather insistently
20 that despite the 16 station compliance number, you
21 needed enforceable discharge standards at the
22 structures for reasons that you stated; is that not
23 correct?
24 A. Well, I don't think I said we needed
25 discharge standards. I indicated that we needed
337
1 enforceable discharge limits or discharge criteria,
2 however they were appropriately --
3 Q. You needed a discharge number?
4 A. That is correct.
5 Q. And this reflects that you insisted on that
6 several times in the course of that dialogue, did you
7 not?
8 A. I did. I recall that.
9 Q. And did you state reasons such as at the
10 bottom of page 2, the objective that the 16 stations
11 did not cover the entire marsh, lack of confidence
12 that the 16 station limit will be actively pursued to
13 be maintained by the District, and the question of
14 enforceability, a discharge limit would give a more
15 dependable enforcement point?
16 A. That's reflected here in these notes and I
17 don't have specific memories of saying those things,
18 but I won't argue with the fact that it's recorded in
19 this document.
20 Q. And you were asked, top of the next page,
21 according to the notes, "Mark, didn't you propose
22 using the 16 stations in Miami?" And Mark is
23 recorded as answering yes.
24 And DER here states that "would agree to
25 come up with a discharge number, but enforcement
338
1 would be by the 16 stations." An option is described
2 as "come up with a target operational number for
3 discharge, design target, but very difficult to
4 defend, and research will ultimately give
5 threshold --" what's that next little symbol there,
6 the equals sign with the dot over it? What does that
7 mean, do you know?
8 A. No, I can't tell you what Mr. Whalen was
9 indicating with that. I guess perhaps he -- it may
10 be used to mean define, but I don't know what he
11 meant by that symbol.
12 Q. Did DER express the opinion that applying
13 the marsh number to the S-5A, Acme and S-6 structures
14 is not defensible?
15 A. That's what these notes record. I don't
16 have specific recollection of somebody from DER
17 saying that at this meeting.
18 Q. Is that consistent with your memory of your
19 general response to the argument, however?
20 A. Well, I recall that frequently during our
21 discussions among the technical representatives in
22 meetings such as this one, representatives of ENP and
23 the Water Management District frequently raised the
24 concern that they wanted to insure that what was done
25 during these meetings complied to the best of their
339
1 understanding with the requirements of Florida law
2 and that they wanted to do what they could to insure
3 that whatever challenges were brought subsequent to
4 this agreement such as the challenge we are here for,
5 that the decisions could be defended as being
6 appropriate decisions.
7 In my opinion, in some instances that
8 caution or that concern was raised far more
9 numerously than was necessary to be able to defend
10 the decisions that were made; however, those
11 cautions, it's my recollection, carried considerable
12 weight with the individuals who were making policy
13 decisions and who eventually had to decide whether to
14 agree to these actions or not.
15 Q. Did you say in the course of this
16 discussion, next page, that you "need enforceable
17 discharge standards at structures that will keep the
18 16 stations in compliance or there is no agreement,
19 and if you need an apology because we are changing
20 our position on Loxahatchee after 12 meetings, fine,
21 I apologize, but my direction is, because of events
22 over the past few days, we need discharge standards
23 at the structures to Loxahatchee, S-5A, S-6, Acme"?
24 A. I do have a memory even without this
25 document saying words to that effect, not
340
1 specifically everything that's in here, but yes, I
2 recall saying something along those lines.
3 Q. And when you referred to your direction,
4 are you referring to direction you received from the
5 policy group?
6 A. Well, I don't recall, but a policy group
7 was the group giving me direction with regard to
8 these discussions.
9 Q. Well, would you suppose, Dr. Maffei, that
10 if you made a statement like "we need discharge
11 standards that will keep the 16 stations in
12 compliance or no agreement" that you were acting on
13 your own or that you were acting with prior
14 instruction by somebody in a policy position superior
15 to you?
16 A. Well, my belief is that I did not have the
17 authority to decide whether there would be agreement
18 or not.
19 So as I indicated in my previous answer, my
20 direction was coming from the policy group.
21 Q. And from whom did that direction come in
22 the policy group?
23 MS. PONZOLI: You mean other than an
24 attorney?
25 MR. SMITH: Let it -- I don't mean other
341
1 than an attorney. I would like his answer. He
2 can answer with the same kind of qualification
3 he did yesterday and I'll pursue it.
4 I'm going to respect your objection to the
5 point of asking increasingly narrowing
6 questions. I do not accept the proposition that
7 an attorney had a privilege in that, but I want
8 for various purposes to respect it as far as I
9 can to get responsive answers from the witness.
10 BY MR. SMITH:
11 Q. I don't know if that helps you, but my
12 question is from whom did you receive that direction?
13 A. I don't recall specifically, but my
14 recollection is that virtually all of our directions
15 with regard to these negotiations were relayed to us
16 by an attorney.
17 Q. What was the attorney's name?
18 MS. PONZOLI: Let me think about this,
19 Mr. Smith.
20 I would like to confer with the United
21 States regarding whether we believe it's
22 appropriate for us to allow you to inquire as to
23 which attorney directed these negotiations.
24 I'm not sure the United States agrees that
25 we have to answer this question, so I
342
1 respectfully instruct him not to answer. I will
2 confer with the Department of Justice on a break
3 and we'll decide if we will allow him to answer
4 that question. I'm not going to make that
5 decision unilaterally. I will make it in
6 consultation with my superiors.
7 I think you go very far into territory that
8 you shouldn't be going into.
9 MR. GAINES: Can I just ask at this point
10 in the record, is your instruction intended to
11 relate to directions that came from an attorney
12 in the context of these policy group meetings
13 with all parties as opposed to in the context of
14 private consultation with the United States
15 attorneys?
16 MS. PONZOLI: No, I am not directing him as
17 to joint federal/state meetings. I am directing
18 him as to attorney/client communications and
19 federal meetings.
20 MR. GAINES: Private meetings?
21 MS. PONZOLI: And federal meetings, yes. I
22 thought that was clear yesterday.
23 BY MR. SMITH:
24 Q. Dr. Maffei, when you received the
25 instruction that empowered you or seemed to you to
343
1 empower you to say we need enforceable discharge
2 standards at structures that will keep 16 stations in
3 compliance or no agreement, did you receive those
4 instructions in a person-to-person conversation or
5 over the telephone or in writing?
6 Can you help us confining it that far?
7 A. My belief as I sit here is that it was
8 person-to-person discussion.
9 Q. One person speaking to you or one person
10 speaking to you in a group of two or more persons?
11 A. My belief is there were probably more
12 individuals present.
13 Q. With all those individuals among those you
14 previously identified as in the policy group?
15 MS. PONZOLI: At every meeting or in this
16 meeting?
17 MR. SMITH: In this meeting.
18 THE WITNESS: I don't recall. There were
19 certainly individuals present that I didn't
20 identify yesterday, and as has been revealed to
21 me by this document, my memory on who attended
22 which meetings may not be as precise as I or you
23 would wish.
24 BY MR. SMITH:
25 Q. Were the persons present all federal
344
1 employees or were there any non-federal employees?
2 A. My recollection, the best that I can
3 recall, is that non-federal employees did not attend
4 these discussions when decisions such as this one
5 were being contemplated.
6 Q. The park representative is here recorded as
7 then asking DER put in writing the hang-up of the
8 state, the hang-up of the state with what Loxahatchee
9 wants.
10 Was that writing ever prepared, to your
11 knowledge?
12 A. My knowledge, I have no recollection of it
13 ever being prepared.
14 Q. And this person by the name of Mary who is
15 identified in the notes as Mary Hedrick, facilitator,
16 can you further identify her?
17 A. Beyond that she was I think Mary Herrick --
18 Q. Herrick, yes.
19 A. That's one of the names.
20 Q. H-e-r-r-i-c-k.
21 A. That's one of the names I forgot. I would
22 have recalled she was there, but I wouldn't have
23 remembered her name.
24 She is a facilitator. We learned
25 subsequent to this that she had done work with the
345
1 staff of the Water Management District for some
2 period of time.
3 And I can recall being somewhat annoyed
4 that the state agencies introduced what they
5 considered to be an impartial facilitator into these
6 proceedings, an impartial facilitator who was, it
7 appeared to me, an acquaintance with many of the
8 Water Management District staff.
9 And at one point I saw a picture hanging on
10 somebody's wall in the Water Management District with
11 a group of Water Management District staff standing
12 and Mary Herrick standing in the middle of them. So
13 our concerns about the impartiality of this woman
14 with regard to these negotiations seemed to be
15 confirmed by what we later learned.
16 Q. Well, very forthcoming answer about Mary
17 Herrick, thank you.
18 It didn't deter you from expressing your
19 opinions, did it?
20 A. With regard to this particular issue and
21 some others, apparently it didn't. I don't recall if
22 at the time I felt deterred in any way.
23 I do recall that because there was a
24 facilitator present, she attempted to manage this
25 meeting in a way different from the way our previous
346
1 meetings had gone when we did not necessarily have
2 any type of control over the meeting.
3 Q. All right. At any rate, she is recorded as
4 asking "What direction has the US given the technical
5 team?"
6 And you are recorded as answering "interim
7 discharge limit for all structures discharging to
8 Loxahatchee, operational or Class III discharge limit
9 for all structures to Loxahatchee, and implementation
10 plan and schedule," and I can't make out what it next
11 says. It says "on sheet."
12 Could you distinguish to me the difference
13 between the first and the second or part (a) and part
14 (b) as recorded there in this Exhibit K?
15 I understand (a) relates specifically to
16 interim, but what do we mean by operational or
17 Class III discharge? Is that something other than
18 interim?
19 A. My recollection of the way we were
20 proceeding was that we believed that the quantity of
21 phosphorus entering the Everglades through the pumps
22 and more specifically the quantity or load of
23 phosphorus entering Loxahatchee through S-5A and S-6
24 could be reduced and that we believed the technology
25 was available to effect a reduction.
347
1 However, it's my recollection that we
2 further believed that it was probable that the
3 reduction that would be effected by that technology
4 might not bring the discharges down such that the
5 discharges were in compliance with the state's
6 Class III water quality criteria or standards and
7 that it would be necessary to do additional
8 remediation measures in order for those discharges to
9 achieve compliance with the state's laws.
10 So I believe that's the distinction drawn.
11 Q. The implication is that you believed the
12 state's laws applied at the structure?
13 MS. PONZOLI: Object to form.
14 BY MR. SMITH:
15 Q. Was that the premise of your insisting that
16 the operational or Class III discharge limit apply to
17 the structure?
18 A. It's my understanding that structures are
19 required to have permits. It is my understanding and
20 I think it was at that time my understanding that
21 discharge limits for pollutants are placed on permits
22 for structures so that the discharges from those
23 structures do not violate state's water quality laws.
24 Q. And you were expressing a difference,
25 however, with what was being expressed as the state's
348
1 then interpretation of the same laws, were you not?
2 MS. PONZOLI: Object to form. I'm not sure
3 that is what the document reflects.
4 THE WITNESS: Well, as I recall, the
5 litigation which we were negotiating to settle
6 was to a large extent the result of a
7 disagreement over the state's water quality, the
8 interpretation of various state agencies and
9 their responsibility under the state's water
10 quality laws.
11 And I don't know that I was expressing that
12 opinion here or not. I don't know that that's
13 clear to me from this.
14 BY MR. SMITH:
15 Q. Was it your concern that the compliance
16 with the state water quality standards or criteria as
17 determined by readings at the 16 stations would not
18 in your opinion necessarily reflect full compliance
19 with state law, whereas those who were asserting that
20 the 16 stations were the method of determining
21 compliance were asserting the contrary?
22 MS. PONZOLI: Object to form.
23 THE WITNESS: Would you read that back to
24 me, please?
349
1 (Thereupon, a portion of the record
2 was read by the reporter.)
3 MS. PONZOLI: Do you understand it,
4 Dr. Maffei? It's a compound question, but he
5 can break it if you wish or we can deal with it
6 separately or however you want.
7 THE WITNESS: I think I understand what he
8 is asking me.
9 I don't recall if that's what was going on
10 here. This document reflects the expression is
11 by either Lox or ENP that we wanted some level
12 of certainty that phosphorus quantities entering
13 the Refuge would be reduced.
14 And my interpretation of these notes is
15 that that's what we were trying to obtain.
16 BY MR. SMITH:
17 Q. Turn to the page that's headed 5-23-91,
18 which is Bates number 381 in which Loxahatchee is
19 recorded --
20 MS. PONZOLI: Which Bates number are we on,
21 Mr. Smith?
22 MR. SMITH: 381.
23 MS. PONZOLI: Thank you.
24 BY MR. SMITH:
25 Q. Which in the middle of the page Lox is
350
1 recorded as saying "16 station numbers are valid, but
2 need discharge limits."
3 And DER is quoted as making a proposal of a
4 75 percent discharge reduction in the phosphorus load
5 by basin, and that failure to meet reduction limits
6 and marsh limits will trigger further action by 1997.
7 And Lox at the bottom of the page is quoted
8 as replying if the marsh limits are being met, then
9 the load limit is okay, no matter what level it may
10 be, no matter what level, but if marsh limits are not
11 being met, then load limit must be met.
12 Do you recognize that formulation,
13 Dr. Maffei?
14 A. I recognize that formulation.
15 Q. On the next page Lox is quoted as opposing
16 to apply marsh limits to structure as operational
17 limit.
18 Can you elaborate on that? Was this a
19 means by which you were trying to negotiate a way of
20 correlating interior marsh station readings with an
21 operational practice or reading at the structure?
22 MS. PONZOLI: Object to form.
23 THE WITNESS: My memory is that the term
24 operational limit was used frequently to
25 indicate what became written up as interim
351
1 limits. That's what I think I meant by the term
2 operational.
3 BY MR. SMITH:
4 Q. And the next entry here, which Dr. Maffei
5 is quoted as saying "apply the .023 milligram per
6 liter to the structure as a 2002 interim limit," and
7 it further states this "prevents argument by third
8 party because .023 milligrams per liter represents
9 the Outstanding Florida Water limit."
10 Can you translate what's going on there?
11 A. Well, I really don't recall this aspect of
12 the discussions.
13 It is probable that we were discussing the
14 method of determining what the discharge limit per
15 structures discharging into the Refuge would be, but
16 again, I don't recall this discussion.
17 I would also note that on the first page of
18 this exhibit dated 5-21 Mr. Whalen appears to have my
19 name spelled correctly, and on the first page dated
20 5-23 my name is spelled incorrectly.
21 Q. All right, sir. Turn over to page 385.
22 Following the word "impasse," somebody or
23 something, there is a word there I can't read. Are
24 you able to recognize it? "Having a hard time
25 following Mark's logic."
352
1 Who made that statement, do you know, if
2 anybody?
3 A. That's attributed to impasse. I don't
4 know. For all I know, this was Paul Whalen. I think
5 he often had a hard time following people's logic.
6 Q. And did you say something to the effect as
7 attributed to Loxahatchee there in quote marks,
8 "incentive to settle this case before Hoeveler rules
9 is very small"?
10 A. I don't recall saying that. It's
11 attributed to me in quotes. I recall believing we
12 would do well in court.
13 MR. GAINES: Spelled Hoeveler wrong too, if
14 it makes you feel any better.
15 THE WITNESS: Well, I pointed that out to
16 indicate that perhaps even the notes don't
17 reflect what was happening in the meeting with
18 complete accuracy.
19 BY MR. SMITH:
20 Q. At one point in this discussion which
21 perhaps you noted you were quoted as expressing the
22 concern that, that is back on page 3, that
23 Loxahatchee "originally felt that the 16 station
24 approach was good, provided that Loxahatchee was
25 involved in the implementation plan agreement. Am
353
1 not sure that there is trust in the system that this
2 will happen."
3 Did you express that general thought?
4 A. I don't recall it, but it's attributed.
5 Maybe someone speaking for the Refuge.
6 Q. In later discussions provision was made for
7 the Loxahatchee Refuge personnel to be involved in a
8 formal oversight committee, was it not, with
9 responsibility to make certain decisions and
10 recommendations, Technical Oversight Committee?
11 MS. PONZOLI: Object to form.
12 THE WITNESS: Well, as you probably know, a
13 Technical Oversight Committee was agreed to in
14 the final agreement, but I don't necessarily
15 agree that that concept followed this meeting.
16 BY MR. SMITH:
17 Q. Do you want to explain that further,
18 please, sir?
19 Do you think it originated before this
20 meeting?
21 A. My recollection is that the concept of some
22 sort of joint state/federal technical group was one
23 which preceded this meeting, and so I don't think
24 that it arose out of the statement that's recorded on
25 page 0850377.
354
1 Q. Do you consider that the Technical
2 Oversight Committee has authority to decide what the
3 Class III numerical interpretation is?
4 MS. PONZOLI: Object to form.
5 THE WITNESS: No, sir, that's never been my
6 understanding of one of the tasks that the
7 Technical Oversight Committee was given.
8 BY MR. SMITH:
9 Q. Well, how do you interpret the phrase in
10 the Appendix B-3 "The numerical interpretation of the
11 Class III criteria for total phosphorus to the Refuge
12 shall be determined by a research program designed by
13 a panel of scientists designated by the Technical
14 Oversight Committee"?
15 MS. PONZOLI: I'm going to object to this
16 line of asking his interpretation of a legal
17 document where you remove a single line from the
18 legal document and ask his legal interpretation.
19 He is certainly not a lawyer.
20 He can answer from a technical person's
21 understanding, but that does not bind the United
22 States as to its legal interpretation of what
23 the Settlement Agreement means, nor do we
24 concede that in this DOAH proceeding that that
25 would be the United States' interpretation of a
355
1 legal meaning of that phrase.
2 THE WITNESS: With regard to obtaining data
3 for use in determining the Class III standard,
4 my understanding is that the TOC was to insure
5 that a research program to obtain data was
6 developed and implemented.
7 And at some point that data, following the
8 completion of the research program, would be
9 turned over to Department of Environmental
10 Regulation, now Department of Environmental
11 Protection, for their analysis and
12 interpretation.
13 BY MR. SMITH:
14 Q. Did you have a part in drafting or editing
15 the provisions of the Settlement Agreement as define
16 the TOC's responsibilities?
17 A. I believe I participated in discussions
18 where the responsibilities of the TOC took place.
19 Q. You are on the TOC, aren't you, Dr. Maffei?
20 A. Yes, sir, I am on the TOC.
21 Q. Well, did you consider when the agreement
22 was signed that the United States' entrance had
23 secured a place in the decision-making authority of
24 the Water Management District and Department in
25 respect to the matters yet to be decided?
356
1 MS. PONZOLI: Object to form. It's a
2 similar objection as before as to what the
3 United States believes. Dr. Maffei is not
4 really designated by the United States to speak
5 for --
6 MR. SMITH: I didn't ask what the United
7 States believes, but go ahead.
8 MS. PONZOLI: But wait, I think that is the
9 answer that you are attempting to obtain, and I
10 think it's an inappropriate response.
11 You can file a legal pleading and the
12 United States can file a legal pleading back as
13 to what its position is. And that's done in a
14 relatively formal process within the federal
15 government, and rarely in, almost never in my
16 experience is any single person allowed to make
17 those types of decisions. They are made by a
18 hierarchy of people who review and consult.
19 So Dr. Maffei cannot bind the United States
20 by his answer.
21 Do you remember the question?
22 THE WITNESS: Read it back, please.
23 (Thereupon, a portion of the record
24 was read by the reporter.)
25 THE WITNESS: I don't recall having such an
357
1 opinion.
2 BY MR. SMITH:
3 Q. Do you have such an opinion now?
4 MS. PONZOLI: Same objection.
5 THE WITNESS: My opinion is that the TOC
6 does not have a place in the decision-making
7 authority of any state agency.
8 BY MR. SMITH:
9 Q. Concerning such contents in the agreement
10 is "If the TOC determines Class III total phosphorus
11 concentration levels are lower than the long-term
12 total phosphorus concentration levels, then the lower
13 levels shall apply."
14 On page Appendix B-4, did not Dr. Maffei
15 participating in or editing or approving that
16 provision intend that the TOC would actually make the
17 determination that's there described?
18 MS. PONZOLI: Same objection.
19 THE WITNESS: My recollection of why we
20 wanted a TOC included having technical
21 representatives from state and federal agencies
22 talking over these issues and talking about the
23 data was so that we could avoid conflicts.
24 The TOC, as I recall, was not crafted to
25 participate directly in the decision-making
358
1 process of any state agency. It was crafted so
2 that communications between the various
3 governmental entities remained open.
4 BY MR. SMITH:
5 Q. Referring to the provision in Appendix B-4,
6 "If the lower of the Class III or long-term levels is
7 not met by the July 1, 2002, and the 50 ppb maximum
8 annual discharge limit is being met at all inflow
9 structures into the Refuge from the EAA, the TOC will
10 recommend a lower maximum annual discharge limit for
11 the structures to be enforced by DER. Additional
12 actions, such as regulatory measures and increased
13 STA acreage, as appropriate from the empirical data
14 on performance of each program, will be required by
15 either DER or the lower district to meet the lower
16 discharge District."
17 Now that fragment of the agreement
18 expresses the final resolution of the question of the
19 discharge limit; does it not?
20 MS. PONZOLI: I object to your attempting
21 to obtain from this witness the United States'
22 legal interpretation of that document and will
23 continue to express my objection.
24 Dr. Maffei can share with you any personal
25 opinions he has, but I do not consider, nor will
359
1 they be binding on the United States.
2 THE WITNESS: My memory of discussions
3 concerning the TOC, as well as my memory of the
4 activities of the TOC is that representatives of
5 the state agencies, particularly DER, now DEP,
6 consistently told us that it is either the
7 responsibility of that agency to interpret
8 standards or the responsibility of the ERC to
9 establish standards and that we could not modify
10 that.
11 As I recall, our opinion relative to what
12 the TOC would be doing was that under the state
13 law, at least at the time, any citizen of the
14 state could provide data to DEP relative to what
15 that citizen believed the water quality
16 standards should be or whether or not such were
17 being violated.
18 And as I recall as I sit here right now,
19 that is the type of role that we tried to
20 fashion for the TOC.
21 BY MR. SMITH:
22 Q. Did you participate in discussions relating
23 to the amount of acreage necessary for the STAs?
24 A. I was present when discussions of that
25 nature took place.
360
1 Q. Did you participate in those actively?
2 MS. PONZOLI: Object to form.
3 THE WITNESS: I believe I participated at
4 various times in those discussions, although I
5 am not sure that I discussed at various times
6 acreages. I'm not sure that's exactly what your
7 question asked, but --
8 BY MR. SMITH:
9 Q. Did you ever express skepticism or doubt in
10 these discussions that the STAs as described were in
11 fact effectively designed to produce a 50 parts per
12 billion discharge at the S-5A and S-6 structures?
13 MS. PONZOLI: Object to form.
14 THE WITNESS: Which STAs?
15 BY MR. SMITH:
16 Q. Any STAs as eventually incorporated in the
17 Settlement Agreement.
18 MS. PONZOLI: Same objection.
19 THE WITNESS: I believed that the STAs
20 would perform as anticipated by the methodology
21 that was used in attempting to size those STAs.
22 I think there has been an entire appendix
23 on the STAs in the agreement discussing their
24 performance. And to the extent that I was not
25 directly involved in the types of calculations
361
1 that were involved, I did not find fault with
2 what was done.
3 I did express an opinion at one point
4 during these negotiations, as I recall, when
5 representatives of the state indicated a belief
6 that the ENR project would be adequate to meet
7 the needs of the S-5A, that I did not believe it
8 was adequate in size based on our analysis, nor
9 did I believe that it had been sized or designed
10 with the quantity of water and phosphorus being
11 moved through the S-5A in mind.
12 So to that extent, I did express skepticism
13 as to the ability of that particular facility to
14 deal with all the water going through S-5A.
15 BY MR. SMITH:
16 Q. Do you recall moderating provisions being
17 discussed in these meetings, specifically a mixing
18 zone?
19 A. I believe that moderating provisions were
20 discussed at various times in those meetings.
21 Q. And what, if any, position did you express
22 concerning the application of moderating provisions
23 to moderate the, any stringency that would otherwise
24 apply to the S-5A and S6 structures and their
25 discharges or the water quality standards measured
362
1 elsewhere in Loxahatchee?
2 MS. PONZOLI: I have my continuing
3 objection.
4 THE WITNESS: It's my recollection that I
5 agreed with the findings of LOTAC II in regard
6 to moderating provisions, and that is that for a
7 marsh such as Loxahatchee or other parks of the
8 Everglades, moderating provisions, if applied,
9 do not provide protection for the area and that
10 I was opposed to applying them.
11 BY MR. SMITH:
12 Q. Did anyone present in these meetings on the
13 technical group express a contrary opinion?
14 A. I don't have any recollection of contrary
15 opinions being expressed. I have recollection of the
16 explanation of various state water quality statutes,
17 but I don't have a recollection of people expressing
18 contrary opinions.
19 Q. Were you the author of the idea of the
20 so-called Clean III idea, which, as I understand it,
21 invokes the readings at three specified Loxahatchee
22 marsh stations as the basis for determining
23 compliance with Class III standards in the long term?
24 A. My recollection is that I was not the
25 author of that.
363
1 Q. Who was?
2 A. My recollection is that Dr. Bill Walker
3 probably first proposed that idea or an idea which
4 may have led to that.
5 Q. And was that discussed in the group?
6 Evidently so. It eventually was incorporated in the
7 agreement, but do you recall discussions of that?
8 A. I can recall I think at least one meeting
9 where that was discussed.
10 Q. Is the effect of that in your opinion --
11 well, perhaps it's self-explanatory, but is the
12 Clean III, are those stations at which readings on a
13 historical basis have indicated a lower phosphorus
14 level than other stations in Loxahatchee?
15 A. My recollection of the information is that
16 those three stations did represent the three cleanest
17 stations with regard to phosphorus within the Refuge.
18 Q. What's the rationale in terms of the
19 narrative standards that you have alluded to for
20 selecting those three stations as the place at which
21 compliance will be determined?
22 MS. PONZOLI: Do you understand the
23 question?
24 THE WITNESS: Yes.
25 I don't recall what the rationale was.
364
1 BY MR. SMITH:
2 Q. Was there rationale at the time it was
3 agreed upon?
4 A. Based on my recollection of the way these
5 discussions went, there probably was, because I don't
6 believe that DEP, then DER, representatives would
7 have accepted the description of these limits if they
8 did not believe that they could support them.
9 Q. Do you recall whether DER, now DEP, then
10 expressed a rationale for supporting them? Do you
11 know what it is today?
12 MS. PONZOLI: Object do form. It's a
13 compound question.
14 THE WITNESS: As I said, I don't recall
15 discussing the rationale. It may have been that
16 I wasn't present at meetings when this was
17 discussed, I don't know. And I don't know what
18 DEP's rationale would be today.
19 BY MR. SMITH:
20 Q. In your opinion, is there a relationship
21 between the, or a correlation between the discharges
22 from the S-5A and S-6 structures and readings at
23 these three marsh stations?
24 A. You mean correlation in the statistical
25 sense?
365
1 Q. Yes.
2 A. The information that I have is that various
3 individuals have looked at that question and have
4 concluded that there is no correlation.
5 Q. Are you aware of any position that has been
6 expressed by or on behalf of Loxahatchee because of
7 that lack of correlation between the discharges at
8 these structures and these three stations?
9 Has any position been advanced by or on
10 behalf of Loxahatchee in consequence of that
11 conclusion?
12 MS. PONZOLI: You are talking about in a
13 technical meeting, Mr. Smith?
14 MR. SMITH: Yes, at any time from then
15 until now by Loxahatchee that Dr. Maffei has
16 knowledge of.
17 THE WITNESS: There may have been. I don't
18 recall a specific position.
19 MS. PONZOLI: It would be hard with 150
20 depositions going on.
21 THE WITNESS: I don't recall, sir.
22 At your convenience, I would like a break.
23 MR. SMITH: All right. Let's take a break.
24 (Thereupon, a recess was taken.)
366
1 BY MR. SMITH:
2 Q. Dr. Maffei, are you familiar with the fact
3 that there is now in process a proceeding by the
4 United States Environmental Protection Agency in
5 regard to a permit to be issued to the South Florida
6 Water Management District for discharges from the
7 Everglades Nutrient Removal Project?
8 A. Yes, sir, I'm aware that the Water
9 Management District applied for such a permit and
10 that the application is being considered and has been
11 acted on by the United States EPA.
12 Q. Did you have any conversations or
13 communications of another kind with United States EPA
14 personnel with regard to the conditions and effluent
15 limitations in that permit?
16 A. I had conversations with EPA personnel and
17 I think that was one of the topics that was brought
18 up.
19 Q. When did you have that conversation or
20 conversations?
21 A. I don't recall specific dates. There was
22 two occasions when I met with two representatives of
23 EPA who were also at the same time meeting with
24 representatives of the Water Management District and
25 I think perhaps representatives of DEP as well, and
367
1 discussions of a general nature took place about the
2 facility, and I don't recall the date of those two
3 meetings.
4 They were on one occasion, they had gone
5 out to the ENR project to look at it. Water
6 Management District staff brought the EPA
7 representatives out there. And I met them out there
8 and spent a brief period of time with them.
9 And the following day I went over to the
10 Water Management District, where the representatives
11 of EPA were meeting with Water Management District
12 staff, and there may have been again DEP personnel
13 present. I don't recall for sure one way or the
14 other. And again, there were general discussions of
15 the permits.
16 And I also recall receiving a phone call at
17 one point from somebody in EPA, and I can't say for
18 sure who it was. I don't recall the names of any of
19 these individuals for sure.
20 And in that phone call I think the person
21 from EPA indicated their intent was to in some way
22 incorporate the kind of criteria in the Settlement
23 Agreement on the permit conditions, and to the best
24 of my recollection, that was all right with me.
25 Q. So in terms of numbers of meetings or other
368
1 communications you have described, as I understand
2 it, three, a meeting out at the ENR project, followed
3 by a meeting at the District, followed by a phone
4 call?
5 A. I think that is all the occasions when I
6 discussed that permit with representatives of the EPA
7 where the subject of quality of discharges or special
8 conditions relative to discharges may have come up.
9 Q. Have you had discussions or other
10 communications with any other federal personnel on
11 that subject?
12 A. On the subject of what?
13 Q. Conditions or other contents of the EPA
14 permit.
15 A. I can recall a discussion with somebody
16 from the Vero Beach Fish & Wildlife Service office
17 who called me and indicated that they had been
18 requested to comment on the application.
19 Q. And soliciting your views?
20 A. Yes.
21 Q. Did you give your views?
22 A. I indicated that it was my understanding
23 that that permit was being handled by Department of
24 Interior people or being commented on by Department
25 of Interior people in Washington and that I was not
369
1 going to provide comments on that permit, because I
2 did not know what the views were of officials of the
3 department. And as I recall, that was the extent of
4 the conversation.
5 Q. From whom did that call come?
6 A. I don't remember who that call was from.
7 Q. But that was somebody with the Fish &
8 Wildlife Service?
9 A. Somebody from the Fish & Wildlife Service
10 in the Vero Beach field office, as I recall.
11 Q. Have you had any comments with any other
12 federal personnel except those that you mentioned?
13 A. Regarding permit conditions?
14 Q. Yes, anything relating to the permit.
15 A. Anything relating to the permit, I think I
16 have talked about the permit with, or anything
17 relating to the permit with a variety of employees of
18 the government.
19 Q. Let me tell you what I'm particularly
20 interested in. You have seen the draft permit, I
21 presume?
22 A. I have a copy of the draft permit, but I
23 have never read through it.
24 Q. You have never read the conditions?
25 A. No, sir, I never have.
370
1 Q. Are you aware then that the draft
2 February 15, '94 provides that "If by July 1, 2002,
3 it's indicated by the water quality data collected at
4 the interior marsh stations that the Class III water
5 quality criteria are not being met at the outfall,
6 then the effluent shall be further limited to an
7 annual maximum total phosphorus concentration of 50
8 PPB"?
9 Are you aware of that, sir?
10 A. I don't recall that being in there. I
11 don't recall anybody telling me that that was in
12 there.
13 Q. Do you recognize that as different from the
14 Settlement Agreement?
15 A. Can I look at it? It sounded different.
16 MS. PONZOLI: With all due respect,
17 Mr. Smith, I think the conspiratorial monolith
18 that the Cooperative assumes is probably
19 physically impossible in terms of hours in the
20 day for most federal employees.
21 MR. SMITH: I'm going to resist debating
22 with you, Ms. Ponzoli.
23 MS. PONZOLI: It was a brief comment,
24 Mr. Smith.
25 MR. SMITH: Well, your comments for the
371
1 record are made for the record, I recognize
2 that, and I really don't think it would be
3 fruitful for me to debate them with you. I just
4 want you to know that I recognize that you are
5 making them for the record like that.
6 MS. PONZOLI: I think you have engaged in
7 that a great deal in briefs and court and
8 certainly have engaged in name calling that I
9 would never have done.
10 THE WITNESS: Well, this language doesn't
11 look like my recollection of any language in the
12 Settlement Agreement.
13 BY MR. SMITH:
14 Q. Dr. Maffei, you had no conversation with
15 anybody that you can recall that would have
16 conceivably been a causal factor in that language
17 being put in that permit, to your knowledge? That's
18 all I want to hear from you.
19 A. I don't recall having conversations with
20 anybody that would have influenced this permit.
21 Q. In that respect?
22 A. In that respect, or in my opinion any other
23 respect.
24 Q. All right. And do you have any knowledge
25 of any other source that might have, from Florida,
372
1 from the local scene, from persons interested in
2 Loxahatchee that might have produced that language?
3 A. As I indicated earlier, I believe that this
4 permit was being handled by officials in Washington.
5 I did not know what their goals for the permit were
6 and I did not think that it was useful for me to try
7 to insert myself into that process.
8 When I was asked to be at meetings such as
9 the two I described, I showed up, and if the EPA
10 representatives asked me questions about it, I
11 answered those questions.
12 Q. Were you asked any questions on this topic
13 that we have just referred to?
14 A. By the representatives from EPA? I can
15 recall standing at the ENR discharge structure and
16 being asked questions about where the quality of
17 water would be measured and certain questions related
18 to the physical layout of the Refuge.
19 I don't recall being asked, for example,
20 what I thought the discharge limits should be or what
21 any special conditions should be.
22 Q. Well, when you were asked at the ENR
23 project by the EPA representative where would the
24 water quality be measured, what did you say?
25 A. My recollection of that was the EPA
373
1 representative was interested in knowing where the
2 Water Management District would be measuring the
3 quality of the water being discharged from the ENR,
4 and my response was probably I don't know. The
5 District people are there. You need to ask them that
6 question.
7 Q. It was a very simple and predictable
8 question, wasn't it, given --
9 A. Simple and predictable question? Probably.
10 That was one of the reasons why they were at the
11 site, was to see the physical layout of the facility.
12 Q. But given the nature of the negotiation and
13 the final agreement with respect to that matter, it's
14 a very complex answer.
15 A. Which negotiation?
16 Q. Your negotiation in the summer of 1991.
17 You agree that a truthful answer in terms of the
18 Settlement Agreement terms would have been a fairly
19 complex answer?
20 A. I'm not sure at that point that I didn't
21 take the question to be referencing the Settlement
22 Agreement or the terms of the Settlement Agreement.
23 Perhaps at some point we talked about that in a more
24 general way, but --
25 Q. Let me ask you --
374
1 A. Sir, I have more I would like to add to
2 that answer and I would appreciate the courtesy of
3 allowing me to add that.
4 Q. All right.
5 A. My recollection at the time of the
6 conversation was they were interested in the
7 specifics of that particular facility and where
8 various measurements would be taken relative to that
9 particular facility.
10 And I did not know what the District's
11 precise plans were, and that would have been the
12 manner in which I answered.
13 Q. What is the physical arrangement for
14 discharges from the ENR project?
15 A. Physical arrangement for discharges? There
16 is a pump located on the L-7 levee which discharges
17 into a small canal that extends from the levee to the
18 L-7 borrow canal.
19 Q. So in your response to the question, where
20 does the District propose to measure for compliance
21 of water quality standards -- did I correctly quote
22 the question first?
23 Give me the question again. What was the
24 question asked of you?
25 A. As I recall, a question was asked where
375
1 will samples be taken? Roughly. That undoubtedly is
2 not the exact question, but my sense of what that
3 question was is where will water quality samples be
4 taken to measure the quality of the discharges from
5 the ENR project?
6 Q. From the ENR project.
7 A. It's likely that we also discussed in more
8 general terms what the Settlement Agreement said. As
9 I indicated earlier, I think they had some interest
10 in that, but I don't recall in any specificity or
11 detail those discussions.
12 Q. You don't recall being asked about giving
13 an answer to a question about measuring for water
14 quality standards compliance in the marsh?
15 A. Well, perhaps I did. I don't recall it
16 with specificity to these meetings, because that's
17 something I have discussed many times on many
18 occasions with many different people. It's possible
19 we did discuss that.
20 Q. This would have been within the last three
21 months, would it not?
22 MS. PONZOLI: Mr. Smith, we finished a very
23 extended period of negotiations of which this
24 was a topic for a great deal of time, where
25 things were to be measured. The NPDES permit
376
1 was an issue of great debate in those
2 negotiations. We came barreling out of those
3 negotiations into this rather compressed and
4 difficult discovery period where it has become
5 again a subject of enormous debate.
6 To expect someone's memory to pull out each
7 and every meeting and who attended and who said
8 what and when he said what is unreasonable.
9 THE WITNESS: My recollection is that these
10 conversations would have taken place prior to
11 the beginning of this year.
12 BY MR. SMITH:
13 Q. December 1993?
14 A. Either November or December. Probably
15 December.
16 Q. Well, let me just press you just a moment
17 further, Dr. Maffei.
18 A. Okay.
19 Q. Let's try again. You might have been asked
20 a question that would have called for you to respond
21 to a description of the 16 marsh stations?
22 A. I may have been, yes, sir.
23 Q. And if you were asked a question of that,
24 would you have given that response?
25 A. Which response?
377
1 Q. We are going to take the measurements at
2 the 16 marsh stations.
3 MS. PONZOLI: I don't think that's a
4 reflection of what he has testified to to now.
5 THE WITNESS: If I was asked a question
6 regarding the way the Settlement Agreement is
7 structured, I would have answered it as
8 accurately as possible based on my understanding
9 of the agreement.
10 If I had the document with me, I would have
11 utilized the document. If I didn't, I would
12 have discussed it as accurately as I could.
13 BY MR. SMITH:
14 Q. All right. So you could have been asked a
15 question to which a response would have been
16 appropriate in terms of the 16 marsh stations?
17 A. Except that we are only utilizing 14
18 stations in the marsh and not 16, so if a question
19 had been posed regarding the manner in which the
20 measurements are being taken, I believe I would have
21 indicated -- as I sit here right now, I think we are
22 only using 14 of the stations.
23 Right now I, to tell you the truth, I'm
24 confused whether we are using 14 or 16.
25 Q. I'm simply trying to jog your memory of
378
1 what you responded to.
2 You cannot recall any more specifically
3 than that you answered questions and that you don't
4 know where the District was going to measure?
5 MS. PONZOLI: Object to the
6 characterization of his recollection.
7 THE WITNESS: I don't recall with any more
8 specificity questions relating to this topic in
9 discussions with the individuals from EPA on
10 that visit.
11 In regard to whether or not I knew where
12 the District was going to measure, my
13 interpretation of the question was that the
14 individual asking it wanted to know with some
15 specificity where collections would be taken,
16 and I did not know with the type of specificity
17 that I believed the question was being asked.
18 I may have responded in a general way, this
19 discharge canal or the L-7, but I don't have any
20 more clear recollection of that conversation.
21 BY MR. SMITH:
22 Q. But as you have just related it, you have
23 described the question as related to discharges from
24 the ENR project; is that -- have I understood you?
25 A. That's what we have been talking about.
379
1 Q. Okay. Was there some inquiry -- let's
2 settle it once and for all. Was there an inquiry
3 about where the District was going to make
4 measurements for compliance with water quality
5 standards vis-a-vis the outfall at the S-5A and S-6
6 structures?
7 Was there a question?
8 A. Once again, I don't recall with specificity
9 that conversation.
10 Q. And you don't recall giving any answer
11 related to those structures?
12 MS. PONZOLI: It's been asked and answered.
13 THE WITNESS: We were having discussions
14 about the Refuge. I don't recall what
15 particular topics came up in those discussions.
16 Discussing the provisions of the Settlement
17 Agreement at this point in time are not unique
18 for me for any one particular meeting, because,
19 as I indicated earlier, it is a common topic in
20 discussions that I have with people who are
21 involved in this and with people who aren't
22 involved with this, people who are interested in
23 a general way in the work that I do. It's no
24 longer a subject which stands out in my mind
25 when I talk about it.
380
1 BY MR. SMITH:
2 Q. Okay. Does the TOC meet on any frequent
3 basis?
4 A. I don't know what your characterization of
5 any frequent basis is. The TOC has at various times
6 met or attempted to meet twice a month or once a
7 month at a minimum. It has not always done that.
8 Q. And is it organized in any formal way?
9 MS. PONZOLI: Object to form.
10 BY MR. SMITH:
11 Q. Does it have a chairperson?
12 A. Yes, at some time during our meetings,
13 originally the chair was rotating among participants,
14 and I seem to recall that discussion was held that
15 perhaps we would be more efficient if a single
16 individual held the chair for a period of time. And
17 currently it does have a single individual identified
18 as the chairperson.
19 Q. Who is that?
20 A. At the present time I believe it's Dr. Mike
21 Soukup.
22 Q. And was there a prior chairperson?
23 A. As I indicated, prior to Dr. Soukup being
24 chosen as the chairperson, the chair rotated with
25 every meeting.
381
1 Q. So Dr. Soukup is the first chairperson to
2 have a term beyond a single meeting?
3 A. I believe that's the case. I don't think
4 anybody had the chair for two consecutive meetings
5 prior to that. It may have happened. I don't think
6 it did.
7 Q. What is his affiliation?
8 A. Dr. Soukup is currently an employee of the
9 National Biological Survey.
10 Q. And what prior affiliation did he have
11 vis-a-vis the project?
12 A. Prior to his employment with the National
13 Biological Survey, he was assigned to the Park Study
14 Unit, which was established at Florida International
15 University and the University of Miami.
16 And prior to that, he was director of the
17 South Florida Research Center located in Everglades
18 National Park. And he had other positions prior to
19 arriving at Everglades National Park, all of which I
20 am not familiar with.
21 Q. Are minutes kept of the meetings?
22 A. Minutes are kept of the meetings. I
23 believe the meetings are videotaped as well
24 generally.
25 Q. And has the TOC made any, I'll say findings
382
1 with respect to matters that it deems within its
2 responsibilities that it has passed on to the
3 District?
4 MS. PONZOLI: Object to form.
5 THE WITNESS: Well, I don't recall the TOC
6 ever identifying anything as binding. Perhaps
7 we did.
8 We did with the help of some outside
9 scientists provide a study plan which outlined
10 studies to be undertaken to obtain data that we
11 thought would be useful in providing a numeric
12 interpretation of the Class III phosphorus
13 standard. I don't know if you term that a
14 finding or not.
15 BY MR. SMITH:
16 Q. What was done in consequence of identifying
17 that or formulating that project?
18 A. Well, the Water Management District and in
19 conjunction with the DEP, it's my understanding they
20 have established certain research programs that they
21 believe are consistent with what is described in that
22 report or that plan.
23 Q. Who was the outside consultant?
24 A. There were several, four, actually. I
25 believe Dr. David Lean was one of the individuals,
383
1 Dr. Bill Walker. I think I can come up with the
2 other two names if you give me a minute.
3 Their names elude me right now, but they
4 are listed on the title page or the cover page of
5 that document. I just can't find them.
6 Q. Sure. Do you recall a proposal by Dr. Ron
7 Jones to do some studies relating to the subject you
8 just mentioned, Florida International University?
9 A. I have seen proposals by Dr. Jones relative
10 to that topic.
11 Q. Were those proposals handled by the TOC in
12 any way?
13 A. Sometimes the TOC looked at documents
14 produced by Dr. Jones.
15 As I recall, one of the purposes of the TOC
16 was to have the inter-agency communication, and it
17 was our desire to include all agencies of the TOC as
18 well as other interested persons in the formulation
19 of the research protocol for an aspect of that study
20 plan that Dr. Jones was interested in doing.
21 And so documents that Dr. Jones was
22 preparing relative to that portion of the study were
23 at times provided to the TOC and discussions of those
24 documents I think took place in some TOC meetings.
25 Q. Did the TOC ever make any recommendation
384
1 concerning Dr. Jones particularly?
2 MS. PONZOLI: Object to form. It's a vague
3 question, Mr. Smith.
4 THE WITNESS: I don't think the TOC has
5 made recommendations relative to Dr. Jones.
6 BY MR. SMITH:
7 Q. What recommendation, if any, has the TOC
8 made to the District with respect to a program for
9 gathering data from which to interpret the numerical
10 counterpart of the Class III narrative water
11 standard?
12 A. Well, the TOC in conjunction with more
13 outside individuals drafted a study plan which I
14 alluded to earlier, and to the extent that you
15 consider that a recommendation, that's what the TOC
16 did.
17 Q. And did the District do anything in
18 consequence of that?
19 A. Well, I think that question is open to
20 debate. The District is doing research that's
21 identified in that study plan.
22 Whether they are doing it in consequence of
23 it or not, I don't know that I really know the answer
24 to that question.
25 Q. Have there been any other actions taken by
385
1 the TOC that were regarded by the District as
2 recommendations for action by the District that you
3 can think of?
4 MS. PONZOLI: Object to form. I don't
5 think he indicated there has been any
6 recommendation. He said if you considered that
7 a recommendation. I think your question is
8 incompetent.
9 THE WITNESS: My answer to that, Mr. Smith,
10 would have to be that after dealing with
11 District personnel for over seven years, I still
12 don't know what motivates them with regard to
13 any decisions they make.
14 I am not specifically aware of other
15 recommendations, although we did, the TOC did
16 prepare an inter-agency memorandum of agreement,
17 or it may have had different title, that we
18 believed would be useful signed. I don't know
19 what action the District has taken on that at
20 this point and I don't know if that's considered
21 a recommendation of the TOC or not.
22 The TOC has also from time to time
23 discussed with District staff activities that
24 the staff were performing and may have provided
25 review or comment on those activities, but
386
1 again, I don't know the extent to which the
2 District has taken those to be recommendations
3 or reviews of their activities and to what
4 extent they may have acted on them.
5 MR. SMITH: All right, thank you. I have
6 no further questions.
7 MS. PONZOLI: Does that conclude your
8 deposition, Mr. Smith?
9 MR. SMITH: Yes.
10 MS. PONZOLI: Thank you.
11 (Discussion held off the record.)
12 MS. PONZOLI: I think we ought to break for
13 lunch now. I think we better take the hour as a
14 result of what Mr. Sams and I discussed, because
15 I have to reach about four different people and
16 try to set up something to resolve our problem
17 and I have to make a phone call I promised I
18 would make, but I will be back in an hour.
19 MR. GAINES: Could you be back in 45
20 minutes?
21 MS. PONZOLI: I doubt it, but I will try.
22 (Thereupon, a luncheon recess was taken.)
23 (Mr. Smith, Mr. Ward and Ms. Peterson
24 have now left for the remainder of the deposition.)
387
1 CROSS (Mark D. Maffei, Ph.D.)
2 BY MR. GAINES:
3 Q. Dr. Maffei, for the record, my name is
4 Jonathan Gaines. I represent the Florida Sugar Cane
5 League and US Sugar Corporation in this
6 administrative proceeding, and I also have some
7 questions for you.
8 MR. GAINES: Let me ask, to follow up on
9 the issue that Mr. Smith raised before lunch as
10 to the identity of the individual that had
11 instructed Dr. Maffei with regard to seeking the
12 discharge standards, you had said you were going
13 to check, Suzan, during lunch on whether you
14 were instructing him not to answer or you would
15 maintain that instruction.
16 MS. PONZOLI: I did inquire if my
17 interpretation of the attorney/client would
18 apply and I have not received an answer, and so
19 I think we should defer that question once more,
20 but actually I made several phone calls, and one
21 individual is on travel and I reached another
22 individual who will have to make sure that we
23 are all interpreting it the same.
24 You are seeking the identity of the person
25 who communicated to him his instructions?
388
1 MR. GAINES: Just so I'm understanding and
2 the record is clear on this, my understanding of
3 where that issue was left was that based on
4 Mr. Smith's questioning, we got to the point
5 where we determined that it was an attorney that
6 had provided the direct instructions in that
7 regard in connection with the policy group, and
8 he had asked the name of the individual, and
9 that was where you were instructing him, your
10 instruction not to answer came in.
11 MS. PONZOLI: Right. So I'm still awaiting
12 a final confirmation of my instruction not to
13 answer.
14 MR. GAINES: All right. I guess we'll have
15 to come back to that.
16 MS. PONZOLI: We have several more days,
17 so -- you know.
18 BY MR. GAINES:
19 Q. You recall that portion of our discussion,
20 Dr. Maffei, that we were just talking about, the
21 testimony you gave about having received instructions
22 from an attorney?
23 A. Yes, I recall discussion about that, those
24 events earlier this morning.
25 Q. And just so I'm clear, and I apologize if
389
1 I'm repeating an area, that instruction that you
2 received, is there in your mind a definite moment or
3 memory of having received a specific instruction from
4 this individual we are talking about?
5 A. The memory that I have is that we received
6 a variety of instructions from this individual, and
7 my recollection is that if not all of our
8 instructions, most of our instructions were relayed
9 by that individual.
10 I do not have a specific recollection of
11 when this particular piece of information was
12 transmitted, but again, I attended numerous meetings
13 and it's difficult to keep them all from merging into
14 one large meeting.
15 Q. Are you able to recall whether this
16 instruction occurred in the context of a policy group
17 meeting as you described before that included state
18 representatives as well as federal representatives?
19 A. My --
20 MS. PONZOLI: It's been asked and answered.
21 MR. GAINES: I apologize if it has. I
22 don't mean to repeat things.
23 THE WITNESS: My recollection is that
24 instructions of this nature were provided during
25 meetings only of the federal representatives.
390
1 BY MR. GAINES:
2 Q. Okay. Do the notes from these two meetings
3 which we have already gone over some today and
4 yesterday, is it an accurate reflection as contained
5 in the notes that the request or demand or however
6 you want to characterize it for discharge standards
7 was in fact a change of the federal position after
8 having had a different position in the earlier
9 meetings?
10 A. Well, first of all, as I said earlier,
11 despite the reference at least one time in here to
12 this request as being for a discharge standard, we
13 had been educated by DEP that actually this would be
14 a discharge limit.
15 Q. Take out the word standard. I'm using it
16 because it's in these notes, but I understand that
17 there is a legal issue on the use of the word
18 standard.
19 A. Positions of both the state and federal
20 participants changed and evolved according to
21 discussions that were held over the period of time of
22 the negotiations.
23 It's my recollection that prior to,
24 immediately prior to this particular meeting the
25 requirement for a discharge limit and structures was
391
1 not one that we were pushing for.
2 I don't recall at this point in time
3 whether we had begun negotiations with such a,
4 holding such a position or not.
5 Q. All right. So then to the extent that the
6 notes reflect a statement from you along the lines of
7 if you need an apology because we are changing our
8 position on Loxahatchee after 12 meetings, fine, I
9 apologize, you don't recall specifically now whether
10 that accurately reflects what occurred?
11 A. No. I don't recall if we had a position
12 that was changed and then 12 meetings occurred and
13 then the new position was modified again. I don't
14 recall.
15 Q. And just so we are clear, take out the
16 specific reference to 12 meetings and just put in a
17 number of meetings.
18 Is it still the same answer that you don't
19 recall?
20 A. I still don't --
21 Q. I don't want you to get hung on the fact
22 that it specifically says 12 meetings and you don't
23 recall the number of meetings.
24 A. At this point I don't recall what any
25 negotiating positions were specifically with regard
392
1 to this as we entered negotiations, so I don't
2 recall.
3 Q. Now earlier you mentioned when asked about
4 whether there was a relationship or correlation
5 between inflows to the S-5A and S-6 and the readings
6 at the interior marsh stations that various
7 individuals have concluded in a statistical sense
8 that there is no statistical correlation.
9 Is that accurate?
10 A. That's my understanding, yes.
11 Q. Are you aware of any individuals who have
12 analyzed that issue that have come to a different
13 conclusion than that?
14 A. No, sir, I am not.
15 Q. What is the significance of adding the
16 factor of it being a, quote, unquote, statistical
17 relationship between the inflows and the interior
18 marsh as opposed to some other type of relationship?
19 A. Well, as I recall, the way Mr. Smith put
20 the question, he said to me something along the lines
21 of do you believe there is a relationship -- strike
22 that -- a correlation between the discharges from
23 those pumps and the quality of the water on the
24 marshes?
25 To me, relationship has a different meaning
393
1 than correlation, so I asked him do you mean
2 correlation in a statistical sense? Which is a
3 specific type of statistical analysis of data, to
4 which he replied in the affirmative.
5 Q. What would the word relationship mean as
6 you understood it in that question?
7 A. Well, to me, a relationship is a more
8 general term. And so if the question had been is
9 there a relationship between the quality of the water
10 on the marsh and the quality of the water being
11 pumped into the Refuge, I probably would have
12 responded I do believe there is a relationship.
13 Q. And can you articulate what you believe
14 that relationship is?
15 A. I believe the water pumped into the Refuge
16 through the S-5A and S-6 pumps has an effect on the
17 quality of the water at various locations in the
18 marsh at various points in time. That's the
19 relationship that I believe exists.
20 Q. Are you able to quantify that relationship
21 in any fashion?
22 A. I have not attempted to quantify it in any
23 fashion.
24 Q. Are you aware of anyone that has been able
25 to quantify it in some fashion?
394
1 A. I think in a sense when one considers some
2 of the work done by the Water Management District as
3 efforts to quantify the relationships between the
4 quality of water pumped into the Refuge and the
5 quality of the water on the marsh --
6 Q. Well -- you are not finished?
7 A. I would have added some, but you have
8 interrupted my train of thought.
9 Q. I apologize.
10 A. Seems to be a habit of attorneys.
11 Q. I guess we are not used to witnesses that
12 think about their answers to this degree.
13 A. Well, I think that this is a serious matter
14 and I'm doing my best to give serious responses.
15 Q. What work of the District are you referring
16 to there?
17 A. The work which generated the data sets
18 which were utilized in efforts to determine the
19 quality of the water on the marsh.
20 Q. Are those data sets, you are talking about
21 the historic sampling at the 16 interior marsh sites?
22 A. Those are the data I'm referring to.
23 Q. Am I interrupting you again? I do
24 apologize.
25 A. I'll try to be patient.
395
1 In a way, those data from roughly the 1978
2 to 1993 time frame were used I believe in an effort
3 to describe relationships of inflows to water quality
4 on the marsh, and specifically, if I remember
5 correctly, the draft reports that were prepared
6 discussed such things as the amount of phosphorus
7 entering the Refuge as compared to the amount of
8 phosphorus which was leaving the Refuge.
9 And in that sense, I think they were trying
10 to establish some quantification, some relationship
11 between the surface inflows and water quality
12 throughout the Refuge.
13 Q. Can you you explain that to me how -- first
14 of all, do you know whose work that is, individual?
15 A. There are several, and let's see if I can
16 remember the names of the individuals.
17 I recall that Paul Millar of the Water
18 Management District was involved.
19 Q. Is that M-i-l-l-ar?
20 A. That's correct.
21 I recall that Tony Federico was listed an
22 author of one of those documents, along with Mr. Paul
23 Millar.
24 And there was a third author on one of the
25 documents. My recollection is that it was a
396
1 Mr. Rogers, but that may be incorrect.
2 Q. But you could be in the neighborhood,
3 right?
4 A. I could be, but that's the name that's
5 coming to mind.
6 Q. Let me ask you this. Can you put a date
7 and/or a title on this report or reports that you are
8 thinking of?
9 A. I think the report that Mr. Millar authored
10 alone was dated approximately 1981, and the report
11 that listed three authors I think had a date roughly
12 of 1983, maybe 1984.
13 In any event, it was the early eighties.
14 Q. And I assume you don't recall the specific
15 titles of these reports?
16 A. I don't. It may have been something like
17 water quality impacts in the Everglades Conservation
18 Areas. I really don't recall.
19 Q. Okay, you don't recall.
20 And am I understanding you that these
21 reports, or let's take the Millar one, if there is
22 a -- well, you tell me if you are talking about one
23 or the other, because I don't have them distinct in
24 my mind, but is it your sense that these reports
25 attempted to analyze inflows and outflow
397
1 concentrations as well as the interior marsh
2 concentrations and articulate some kind of
3 relationship between those values?
4 A. It's been some time since I have looked at
5 those reports.
6 What I seem to recall is that both of those
7 reports do discuss inflow values for phosphorus.
8 Both of those reports do discuss outflow values for
9 phosphorus.
10 Both of those reports do discuss the
11 phosphorus concentrations in the water at various
12 points within the Refuge and in fact in other
13 conservation areas. I think both of those reports
14 discussed the amount of phosphorus entering and
15 leaving various conservation areas in terms of
16 phosphorus load.
17 I don't recall if they made specific
18 conclusions relative to all of this, comparing all of
19 these numbers and trying to quantify the
20 relationships in some form of an equation, for
21 example, or otherwise.
22 Q. All right. Your articulation of this
23 relationship that you just gave me a few moments ago,
24 a few questions back was, and I'm paraphrasing here,
25 that the inflow water has an effect at various places
398
1 in the marsh and therefore you see that there is a
2 relationship or you think there is a relationship?
3 Is that essentially what you said?
4 A. I don't remember the exact way I phrased
5 it, but I think essentially what I said is the inflow
6 water has an impact on values in the marsh.
7 (Discussion held off the record.)
8 MR. GAINES: Let's make this Number 1.
9 (The document was marked
10 Maffei Exb. No. 1.)
11 BY MR. GAINES:
12 Q. Dr. Maffei, take a look at what has been
13 marked as Exhibit Number 1 to your deposition,
14 3-23-94, and tell me whether you are able to identify
15 this map.
16 A. It's a map of Loxahatchee National Wildlife
17 Refuge, excluding certain pieces of land outside of
18 Conservation Area-1 that are incorporated into the
19 Refuge.
20 Q. Talking about the impoundments?
21 A. I'm talking about the titled area on the
22 eastern side of the Refuge, I'm talking about the
23 titled area on the western side of the Refuge, and
24 today I would also be talking about land owned by the
25 Water Management District on the eastern side of the
399
1 conservation area.
2 Q. Okay. This map is labeled Map of Water
3 Quality Sampling Sites and depicts various water
4 quality sampling sites.
5 Is this a reasonable depiction of the 16
6 interior marsh water quality sampling sites that we
7 have been referring to?
8 A. It appears to be a reasonable depiction of
9 the 16 marsh sampling sites. They have been referred
10 to variously as interior and peripheral and
11 transition or other terms for them, but they are the
12 16 marsh sampling sites we have been referring to.
13 Q. Okay. And of these 16 sites, which two of
14 these sites were eliminated to bring the number down
15 to 14 sites that are -- well, do you recall whether
16 14 or 16 sites are used for purposes of determining
17 compliance with the Settlement Agreement?
18 A. I recall that it's 14 sites will be used to
19 determine compliance with the marsh limits.
20 Q. Do you know which two have been eliminated
21 of the ones depicted in this map?
22 A. It's my recollection that site 1-1 was
23 eliminated and site 1-2 I believe was also
24 eliminated.
25 Q. Okay. And are you able to identify for me
400
1 the three what have been called the three clean
2 sites, the three stations that are used for purposes
3 of long-term compliance determinations?
4 A. No, I don't recall which three those are.
5 Q. All right. Do you recall any of the three?
6 A. I think site 1-16 is included. Beyond
7 that, I don't recall the other two. I think that was
8 one of them.
9 Q. Are you aware as to whether anyone has
10 conducted a flow study to determine how water would
11 flow from S-5A and S-6 to these various interior
12 marsh stations?
13 A. And what does that mean, conducted a flow
14 study?
15 Q. An analysis to evaluate, for my question,
16 it means some type of analysis to evaluate how the
17 water would get from the S-5A and S-6 inflow points
18 to these various interior marsh stations.
19 A. I'm not aware of anybody having conducted a
20 study to ascertain how water would get from the S-5A
21 pump to these various sample locations.
22 Q. And what about the S-6?
23 A. Nor for the S-6 either. I don't recall any
24 such studies being done.
25 Q. Have you yourself ever undertaken such an
401
1 analysis?
2 A. I don't recall ever having undertaken such
3 an analysis.
4 Q. Taking a look just as an example at station
5 1-8, which appears approximately in the middle of the
6 map, would that particular station, do you have any
7 knowledge as to how or whether water from the S-5A or
8 S-6 would ever reach that station?
9 A. I have no specific knowledge of that, no.
10 Q. When you stated before that there was a
11 relationship between the inflows and the marsh water
12 quality to the extent that various places in the
13 marsh are impacted or affected by inflow water
14 quality, would you include this area at station 1-8
15 as part of that relationship?
16 A. I would.
17 Q. Can you explain why?
18 A. To a large extent, my thinking on this
19 particular issue is shaped by events that occurred
20 early in 1991, I believe that was the time frame,
21 when the area of South Florida, including Palm Beach
22 County, experienced what was termed a significant
23 rainfall event. That was also the rainfall event
24 which, to a large degree, ended the drought of 19,
25 which began in September of 1988 and continued up
402
1 until that point.
2 As I recall at the time -- and it's been
3 quite some time since I have looked at the documents
4 recording this event, so my memory of these numbers
5 that I will be giving you is fuzzy and let's say they
6 will be ballpark numbers -- at the time of the
7 rainfall event there was very little water within
8 area one. By very little water, I mean there was
9 probably less than 30,000 acre feet, but again, I
10 don't recall exact numbers.
11 My memory is that analysis by the Water
12 Management District indicated that in the
13 neighborhood of 80,000 acre feet of water entered the
14 Refuge over the duration of this storm event and
15 subsequent pumping event via direct rainfall to the
16 Refuge.
17 My memory is further that someplace in the
18 neighborhood of 150, 160,000 acre feet -- and again,
19 I don't remember the exact number -- approximately
20 that much water entered the Refuge through the S-5A
21 and S-6 pump stations.
22 And again, my memory is that the S-10
23 structures were not opened until towards the very end
24 of this event. So for most of this rain and
25 subsequent pumping event, water was entering the
403
1 Refuge, but discharges were not being made.
2 At the end of this pumping event, roughly
3 two thirds of the water standing within Area 1 was in
4 Area 1 as a result of surface discharges through S-5A
5 and S-6, and as I recall, the bulk of the water was
6 pumped in through the S-6 station as a result of this
7 event, but that might also not be exactly the way it
8 was.
9 Anyway, my conclusion is simply that if two
10 thirds of the water standing in the Refuge was the
11 result of surface inflows, it was not likely that
12 that quantity of water was being confined to any
13 particular part of the marsh, particularly when water
14 levels on the marsh were fairly low when this event
15 began.
16 That is why I believe that even the area
17 around the vicinity of the 1-8 sampling station could
18 be impacted by surface inflows.
19 Q. You say that that event shaped your
20 thinking to a great degree on this particular issue.
21 Have there been other events before or
22 after that one of a similar nature that you can
23 recall where a series of factors such as that came
24 together to create such a result?
25 A. Well, other types of data such as stage
404
1 data at various points within the marsh, specifically
2 at the 1-7 or the 1-9 gauges, relative to stage data
3 at the 1-8C gauge shows that at times canal water
4 levels are higher than marsh water levels with
5 respect to those three locations.
6 And at those times it's my opinion that
7 water may be moving from the canals into the marsh.
8 Q. You say may be moving. Do you know whether
9 or not it is or are you guessing?
10 MS. PONZOLI: Object to form.
11 THE WITNESS: Well, I wouldn't say I'm
12 guessing. I'm interpreting information. You
13 asked me for other types of information that may
14 support this.
15 BY MR. GAINES:
16 Q. Well, I was asking were there any other
17 events.
18 Let me ask you this. The three stage
19 levels that you just mentioned, recorders or the
20 1-8 -- how did you label them? I'm sorry.
21 A. The 1-7 gauge, the 1-9 gauge, and the 1-8C
22 gauge.
23 Q. Okay. Are there other stage level
24 recorders that exist out there or are those the only
25 three?
405
1 A. I believe there are other stage recorders
2 out there.
3 Q. Why are you focusing on those three?
4 A. Those are the three that I believe are used
5 by the Corps to operate the regulation schedule, but
6 I think more importantly as to why I would focus on
7 them is that the 1-8C is the canal gauge near our
8 headquarters boat ramp and which is a gauge that I or
9 other members of Refuge staff visit frequently,
10 probably almost daily to look at levels.
11 The 1-8 -- excuse me, the 1-7 and 1-9
12 gauges are the only two marsh water gauges, interior
13 marsh water gauges that I'm aware of.
14 There is a gauge identified as 1-8D, which
15 is sort of a companion gauge to the 1-8C. It is
16 within the marsh, but is about a quarter of a mile or
17 less from the canal, and the water levels at that
18 gauge have less interest to me.
19 MR. GAINES: Ms. Ponzoli, am I correct that
20 you would object to having the witness mark the
21 exhibit to indicate where those stage level
22 recorders generally are located without holding
23 him to GPS or LORAN precision on that just so I
24 have a general idea? I mean I can ask him to
25 tell me, but if he could mark it --
406
1 MS. PONZOLI: Why doesn't he just tell you
2 where they are? I have no problem with his
3 indicating.
4 I just don't like drawing and then somebody
5 shows it under your nose at trial and it's
6 always off by half an inch and everybody goes
7 aha, see how inaccurate everything he says is?
8 Can he just show you and so for purposes of
9 your questioning, you are oriented to where he
10 means?
11 MR. GAINES: Yes. Let me ask you, will you
12 allow him to place his finger on the paper and I
13 will mark my own copy?
14 MS. PONZOLI: And we will have a
15 gentleman's agreement that I won't see this copy
16 at trial?
17 MR. GAINES: Well, I won't -- let's just do
18 this. I'm not going to say look, you are off by
19 half an inch, aha, everything you say is
20 inaccurate.
21 BY MR. GAINES:
22 Q. Let me ask you this. Can you tell me in
23 general by looking at the map where the 1-7 stage
24 recorder was located?
25 A. In a general way, the 1-7 gauge, I don't
407
1 think it's a stage recorder, there is a gauge, would
2 be located in a general way within the triangle that
3 would be identified or created by connecting the 1-5,
4 1-9 and 1-8 marsh sampling stations. And the --
5 Q. Before you go to the next one, would it be
6 approximately in the center of that triangle?
7 A. It would be. That was going to be what I
8 was going to add to my answer.
9 Q. Sorry.
10 A. It would be approximately in the center,
11 perhaps a little bit east of center on that triangle.
12 That's a rough approximation.
13 Q. All right. How about the 1-9?
14 A. The 1-9 marsh station would be
15 approximately midway between marsh sampling stations
16 1-8 and 1-11. That's roughly, approximately where
17 that station would be located.
18 Q. All right. Same question with regard to
19 the 1-8C.
20 A. If you look on this figure where the six
21 from the 1-6 station touches the boundary of the area
22 on the east, that's roughly the location of the 1-8C
23 gauge.
24 Q. And is that gauge located in the L-40
25 canal?
408
1 A. That gauge is located in the L-40 canal.
2 Q. Thank you.
3 A. You are welcome.
4 Q. What percentage of the time are the canal
5 water levels higher than the marsh water levels
6 according to these three gauges?
7 A. I don't recall having done or seen analysis
8 relative to that. There may be one someplace.
9 Q. Do you have a sense as to whether it would
10 be most of the time as opposed to less than half the
11 time?
12 MS. PONZOLI: I think it's been asked and
13 answered. He said he didn't know. I don't
14 think he is compelled to guess as to whether
15 it's most, middle or less or whatever.
16 BY MR. GAINES:
17 Q. Please don't guess. I understand you can't
18 give me a percentage number as my prior question
19 asked for, but is this a frequent, chronic situation?
20 Is it an infrequent, once in a while kind
21 of situation? What's your sense of it?
22 A. I guess the way I would describe that is
23 that in a general way, I believe this kind of
24 situation occurs on a regular basis, regular in terms
25 of perhaps at some period of every year that's the
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1 circumstance, although I want to make sure it's clear
2 that whether this type of circumstance exists or not
3 is dependent on the specific water level conditions
4 within the marsh, within the Refuge at various points
5 in time relative to surface inflows and discharges,
6 what is occurring relative to the operational
7 schedule, what's occurring relative to rainfall
8 within the Refuge and rainfall in the drainage basins
9 served by the pumps.
10 So beyond that, I don't have a specific
11 sense if it's most of the time, some of the time or
12 only occasionally.
13 Q. Are daily readings taken from those gauges?
14 A. I believe that at a minimum, readings are
15 taken daily from those gauges, as long as they
16 haven't malfunctioned for some reason.
17 Q. And on those days when the 1-8C gauge
18 indicated a higher reading than the 1-7 and 1-9
19 gauges, that would be the condition that you are
20 referring to, canal water levels being higher than
21 marsh water levels?
22 A. In a general way that would be the
23 condition I would be referring to.
24 Q. Okay. Is there any additional precision
25 that you would add to that description?
410
1 A. No, sir.
2 Q. And when that occurs, when the canal water
3 levels are higher than the marsh water levels, your
4 conclusion is that some of that water will flow into
5 the marsh?
6 A. Well, my conclusion is that when water
7 levels in the canals are higher than water levels on
8 the adjacent marsh, water levels from the canals will
9 move into the marsh.
10 Q. Has there been any analysis done to your
11 knowledge by yourself or anyone else to do a flow
12 analysis of that phenomenon to quantify it in any
13 way?
14 MS. PONZOLI: I think it's been asked and
15 answered.
16 MR. GAINES: That was a different question.
17 MS. PONZOLI: Sounds pretty similar.
18 THE WITNESS: I seem to have a recollection
19 that I believe the individual's name was Wade
20 Bryant was thinking of trying to do such an
21 analysis, but I don't believe that study was
22 funded.
23 I am also aware that a Mr. Pollman, I
24 think, who was employed by -- Dr. Pollman.
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1 BY MR. GAINES:
2 Q. Curt Pollman?
3 A. Curtis, right, who was employed as a
4 consultant for the Sugar Cooperative, had made a
5 request that data be acquired that could be used in a
6 way to look at this question.
7 Q. What happened with that request, do you
8 know?
9 A. The information I received is that the
10 request was denied.
11 So the answer to your question, I think
12 those two individuals might be considered to have
13 attempted to do such an analysis.
14 Q. Do you know why Pollman's -- who denied
15 Pollman's request?
16 Did you have anything to do with that?
17 A. No, I did not have anything to do with
18 that.
19 Q. Was that the attorneys in the litigation
20 that were responsible for that?
21 A. Well, the information that I have based on
22 attending the deposition of a Mr. John Davis was that
23 Mr. John Davis decided not to obtain the information
24 requested by Dr. Pollman.
25 Q. So you are saying Dr. Pollman made the
412
1 request to Dr. Davis?
2 A. That's the information that I have, yes.
3 Q. No one made the request to you guys, you
4 two on the other side of the table?
5 A. No, sir.
6 Q. So that as we sit here today, your sense is
7 that there is a relationship of some type between the
8 interior marsh water quality and the inflow water
9 quality on occasions when the canal water level is
10 higher than that of the interior marsh and on
11 occasions such as the 1991 rain event that you have
12 described and the pumping configuration that you
13 described in connection with that event?
14 A. I wouldn't limit the relationship between
15 the two just to those circumstances.
16 You had asked me to elaborate for you
17 information which I may have based that type of
18 opinion, that opinion on, and that's what I have been
19 doing.
20 Q. Would you go ahead and tell me what other
21 circumstances, if any, you can think of that would
22 give rise to this type of a relationship?
23 A. The canals which surround the marsh are
24 immediately adjacent to the marsh, so at times when
25 canal water levels are such that they are above the
413
1 surface of the adjacent marsh, and under conditions
2 when the head of water within the adjacent marsh is
3 not such that water is flowing from the marsh into
4 the canal, at which case the marsh water would be
5 affecting the quality of the water in the canal, I
6 think it's possible that the canal water can be
7 affecting the quality of the water on the marsh.
8 There is movement of water on the marsh to
9 the canal and from the canal into the marsh.
10 Q. Let