486
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 IV
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 - - -
Thursday, March 24, 1994
24 319 Clematis Street, Suite 500
West Palm Beach, Florida 33401
25 9:25 a.m. - 5:00 o'clock p.m.
487
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
7 On behalf of the Intervenor United States:
8 U.S. Attorney's Office
155 South Miami Avenue
9 Suite 600
Miami, Florida 33130
10 By: SUZAN HILL PONZOLI, ESQUIRE
11
Also present: Dr. Courtney Hackney
12
488
1 I N D E X
2 - - -
3 WITNESS: DIRECT CROSS REDIRECT RECROSS
4 Mark D. Maffei, Ph.D.
5 By Mr. Gaines 489
6
- - -
7
E X H I B I T S
8
- - -
9
10 NUMBER PAGE DESCRIPTION
11 Maffei Exhibit 3 521 Satellite map
12 Maffei Exhibit 4 568 Annual Narrative Report, 1993
13
489
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 CROSS (Mark D. Maffei, Ph.D.)
9 BY MR. GAINES:
10 Q. Good morning, Dr. Maffei.
11 Dr. Maffei, would you please explain your
12 view of succession in the Everglades?
13 MS. PONZOLI: Your view of succession?
14 MR. GAINES: Yes, and let me modify that to
15 be the pre-project Everglades.
16 THE WITNESS: Well, the hypothesis that I
17 would have relative to pre-project succession in
18 the Everglades is that it may not have met the
19 classical patterns of succession that would be
20 applied to other ecosystems and that I don't
21 know that I would say there is a, what was known
22 as a climax community.
23 I would hypothesize that the communities
24 and their distribution changed in response to
25 hydrologic regimes over certain periods of time.
490
1 BY MR. GAINES:
2 Q. How would you define the concept of
3 succession generically?
4 A. Well, generically the concept of
5 succession, in a basic form, the idea that a piece of
6 ground, for example, a sand dune, which is one of the
7 habitat types for which this concept was originally
8 developed, may exist with little or no vegetation on
9 it. And then some vegetation is able to colonize
10 that piece of ground.
11 And the fact of the existence on that piece
12 of ground of some species modifies the ecosystem or
13 the physical environment in such a way that other
14 plant species which previously were not able to
15 survive on that piece of ground now can survive
16 there. And these species also have an impact on
17 modifying the physical aspects of the ecosystem.
18 And this continues on until species are
19 present, which while they may be in some way
20 impacting the nature of the physical portions of the
21 ecosystem, are not displaced by other plant species.
22 When it reaches that point, it's what is
23 termed a climax community.
24 Q. And that's your generic definition,
25 correct?
491
1 A. Yes.
2 Q. Is peat accumulation or loss a part of that
3 successional change you just described?
4 A. The accumulation or loss of peat could be a
5 part of that successional change.
6 For example, my understanding of the
7 development of the Everglades is that originally a
8 sheet of water was probably flowing over the
9 limestone that now underlies the Everglades, and
10 slowly the peat accumulated above it.
11 Q. Why is it that you feel that the, or that
12 your hypothesis is that the Everglades may not have
13 fit the classical pattern of succession such as you
14 just described?
15 A. Well, because I have not, it is my opinion
16 that there is no community type out there that I
17 would consider a climax community for the Everglades.
18 Q. When you use the term climax community,
19 does that mean the mix of vegetation at which point
20 the succession process that you described would stop?
21 A. Yes, the concept of climax community is the
22 community at which point succession may not have
23 stopped totally. There would still be disturbances,
24 setbacks of the succession, for example, but the
25 climax community is one which generally endured.
492
1 Also my concept of a climax community is a
2 community which is continuous over the ecosystem with
3 only small gaps or discontinuities.
4 Q. You mean by that that the climax community
5 would have to be the same species or mix of species
6 in some kind of homogenized distribution across the
7 entire ecosystem?
8 A. I'm saying that there would be relatively
9 low spatial heterogeneity over the ecosystem.
10 Q. And what is it that makes you say that the
11 Everglades did not have a climax community as you
12 have described it?
13 A. Well, it's my opinion that the Everglades
14 had high spatial heterogeneity with a number of
15 community types present.
16 Q. Are you talking about the time frame
17 immediately before the project was constructed?
18 A. I was referring to the time frame which you
19 referenced originally, which was pre-drainage, and
20 I'm also referring to the time frame today.
21 Q. We'll talk about today in a minute, but
22 what is dis-climax? Are you familiar with that
23 concept?
24 A. I recall the term, and as I sit here, I
25 don't recall what it references.
493
1 Q. Is succession an ongoing process in the
2 Everglades today?
3 A. It's my opinion that competition between
4 plant species is occurring and that as a result of
5 modifications to the depth of water in the marsh and
6 the duration at which areas of the marsh are
7 inundated, that there are changes to community types
8 occurring.
9 Q. Would you consider that to be succession as
10 you have described it?
11 A. Well, as I sit here, I suppose there could
12 be arguments made on both sides of that question,
13 so --
14 Q. What's your opinion as to how to answer
15 that?
16 A. I would appreciate being afforded the
17 opportunity to complete my answers, to decide when my
18 answer is complete instead of you deciding when my
19 answer is complete.
20 Q. I'll attempt to do that whenever I can,
21 sir.
22 A. Thank you.
23 I don't have an opinion right now as to
24 whether I would consider that succession or not.
25 Q. So you have no opinion one way or the other
494
1 whether succession is occurring in the Everglades
2 today?
3 MS. PONZOLI: Object to form. He answered
4 your question. He said I don't have an opinion
5 right now. That's not the same as how you have
6 restated your question.
7 MR. GAINES: So that's why I'm asking my
8 question.
9 MS. PONZOLI: You can sit here and ask
10 questions, Mr. Gaines.
11 MR. GAINES: Thank you.
12 MS. PONZOLI: I'm saying you are asking the
13 same question again. I'm objecting.
14 MR. GAINES: I don't understand how it can
15 be the same question, yet it's different from
16 what he said. Let me clear it up.
17 MS. PONZOLI: I don't want to bicker with
18 you. Ask your question again.
19 MR. GAINES: Thank you.
20 BY MR. GAINES:
21 Q. So you have no opinion one way or the
22 other, correct, as to whether succession is occurring
23 in the Everglades today?
24 MS. PONZOLI: I'm going to object again.
25 THE WITNESS: My opinion is that depending
495
1 on the views of the particular ecologist,
2 various changes that are occurring in the
3 ecosystem may be considered a succession or may
4 be considered the result of a different type of
5 cause.
6 I would hypothesize that there are places
7 in the Everglades today where succession is
8 occurring.
9 BY MR. GAINES:
10 Q. Are you done?
11 A. Yes, I was done.
12 Q. Would those places be where, as you
13 describe it, as a result of modifications of the
14 depth and duration of water there are changes to
15 community types occurring?
16 A. Yes, that could be occurring.
17 Q. Are there any other types of changes
18 occurring other than what you have described that you
19 would consider to be succession?
20 A. Well, there probably are. For example,
21 there may be changes that could be considered
22 successional changes occurring along the mangrove
23 margins of the Everglades.
24 Q. Do any other categories beyond those two
25 come to mind?
496
1 A. Well, I suppose that one could consider the
2 kinds of changes that occur in a local area as a
3 response to the concentration of nutrients, for
4 example, by the establishment of a bird rookery to be
5 successional changes.
6 Q. Are you familiar with the concept of
7 reverse succession?
8 A. That's a term with which I am familiar.
9 It's been many years since I kept myself familiar
10 with textbooks on the subject of ecology and these
11 types of terms and I don't recall exactly what it
12 refers to.
13 Q. What would your definition be -- we talked
14 a little earlier in the deposition with Mr. Smith
15 about the term imbalance, and there was a discussion
16 of that term as it's used in a legal sense, and, you
17 drew a distinction between that and a biological
18 definition.
19 What I want to ask you now is not anything
20 to do with the legal term imbalance, but the
21 biological definition or ecological definition of
22 imbalance as you understand it.
23 A. Well, as I tried to explain to Mr. Smith
24 the other day, I have lived with the concept of
25 imbalance as a legal concept for quite a long time,
497
1 so I'm having difficulty with using it now in a
2 biological sense, but I'll do the best I can for this
3 answer.
4 There is often references particularly
5 among the lay public of upsetting the balance of
6 nature, and in a general way my opinion of what that
7 referred to was, for example, when a particular
8 species of an ecosystem is impacted in some way, the
9 manner in which that species may have shaped the
10 ecosystem may be also impacted as well, and therefore
11 the ecosystem may change in response to the impact to
12 the specific species.
13 Q. Would the series of changes that occur in
14 the succession that you described be considered a
15 series of imbalances?
16 A. I generally don't consider natural
17 processes to be processes which cause unnatural
18 things such as imbalances to occur.
19 I hope my answer was clear.
20 Q. So that if you have succession occurring as
21 you describe it in the species or going through a
22 series of changes and generating changes in the
23 ecosystem, that would not be considered a, quote,
24 unquote, imbalance because it is a naturally prompted
25 series of events?
498
1 A. Well, that is, those changes are what are
2 incorporated into the concept of succession to begin
3 with.
4 The concept of succession includes the idea
5 that species existing in a place at a point in time
6 may have an impact on the ecosystem such that other
7 species will be able to displace those early
8 colonizers.
9 Q. So is it correct then that imbalances would
10 occur when you have a succession taking place that is
11 not the result of natural phenomena, but is the
12 result of some unnatural source?
13 MS. PONZOLI: Object to form.
14 THE WITNESS: The way I understand that
15 concept, that's the way I would apply it used in
16 a general way.
17 BY MR. GAINES:
18 Q. Now would you consider the modifications of
19 water depth and duration that you described a little
20 while ago as places where succession, inducing
21 succession within the Everglades, are those natural
22 occurrences, those changes in depths and duration of
23 water?
24 A. Some of them can be for sure.
25 Q. Are there changes in depths and duration of
499
1 water occurring today in the Everglades as a result
2 of unnatural stimuli that are causing species to
3 change?
4 A. Well, there are in my opinion differences
5 in depth and in duration of inundation in parts of
6 the Everglades as a result of human activities.
7 Q. And would you consider changes prompted by
8 those activities and those changes in the water
9 regime to be indicative of succession or imbalance,
10 small i, imbalance?
11 MS. PONZOLI: Object to form. Your
12 question implies it has to be one or the other.
13 MR. GAINES: Okay.
14 THE WITNESS: Can you read back the
15 question, please?
16 (Thereupon, a portion of the record
17 was read by the reporter.)
18 THE WITNESS: Well, I never really thought
19 of it, of those changes in quite that way, but I
20 have frequently expressed the opinion that
21 changes in response to, changes in the
22 vegetation or the community in response to
23 changes in depth and duration were the changes
24 in distribution of plant communities within the
25 Everglades, but not necessarily changes in the
500
1 composition of those various plant communities
2 or changes in the character of those plant
3 communities, but more like a redistribution of
4 those various plant communities.
5 I think those types of changes have always
6 occurred within the Everglades.
7 BY MR. GAINES:
8 Q. So if I'm understanding what that answer
9 just was --
10 MS. PONZOLI: Are you finished?
11 THE WITNESS: That's fine, yes.
12 MS. PONZOLI: I'm sorry, I apologize.
13 BY MR. GAINES:
14 Q. The changes in vegetative communities
15 occurring in the Everglades as a result of human
16 manipulation of the depth and duration of water is
17 the type of changes that have always occurred?
18 MS. PONZOLI: Object to form.
19 THE WITNESS: I believe to a great extent
20 the communities that result from the impacts
21 that people have had on the depth and duration
22 of inundation are communities that have existed
23 within the Everglades ecosystem prior to man's
24 involvement.
25 I think whether one would consider that an
501
1 imbalance or succession, imbalance in the small
2 i sense is not necessarily meaningful in terms
3 of the ecosystem.
4 BY MR. GAINES:
5 Q. Well, when you say those communities have
6 always existed, you mean that they are not -- you are
7 talking about communities not comprised of exotic
8 vegetation? Is that what you mean by that?
9 A. Right, to the extent that exotic vegetation
10 is present. And those are communities that were not
11 historically present and I would exclude them.
12 Q. So is your opinion that if you have
13 vegetative communities that are changing, the
14 composition, placement, extent of vegetative
15 communities are changing as a result of human
16 manipulation of the depth and duration of water, you
17 would not consider that to be an imbalance so long as
18 the species are not exotic species?
19 A. I don't think that's necessarily what I
20 said.
21 As I indicated earlier in my deposition, I
22 generally don't use the term imbalance when
23 describing ecosystems like this because of its
24 incorporation into the law and under a particular
25 meaning.
502
1 My opinion is that changes that occur in
2 the ecosystem as a result of changes in depth and
3 duration of inundation as a result of human activity
4 could be argued to be imbalances in some loose sense
5 of the word, but I prefer to think about changes in
6 terms of the degree to which the spatial
7 heterogeneity of the ecosystem is affected in the
8 composition of the species.
9 Q. On your witness disclosure form, which is
10 Exhibit 2 to the deposition, one of the areas of
11 testimony that you will be offering opinions on is
12 imbalance of flora and fauna at the Refuge and in the
13 WCAs.
14 What does imbalance mean in that context?
15 A. To me what it means in that context is
16 changes in the community structure as a result of
17 introduction of anthropogenically-generated
18 nutrients.
19 Q. Would those changes include changes that do
20 not implicate the inclusion of exotic species into
21 the area?
22 A. Can you restate your question?
23 Q. Yes. It wasn't really very well asked.
24 Would a change as a result of introduction
25 of nutrients as you just said, would such a change be
503
1 considered an imbalance as used in your witness
2 disclosure here if it did not, if there were no
3 exotic species involved?
4 A. My understanding of this particular concept
5 is that it would.
6 Q. Okay. If there was a particular community
7 change that had been observed, would it be a correct
8 statement that if it was determined that such a
9 change was caused by the introduction of
10 anthropogenic nutrient, it would be an imbalance, but
11 if that same change was determined to have been
12 caused by man-induced manipulations of the depth and
13 duration of water, it would not be an imbalance?
14 A. Well, as I indicated in response to a
15 previous question that was of a similar nature, it's
16 my opinion that changes as a result of man-induced
17 changes in depth and duration could be argued to be
18 imbalances.
19 Q. And would you be arguing that they were?
20 MS. PONZOLI: Object to form. You mean at
21 trial?
22 MR. GAINES: No, whatever hypothetical
23 debate he was referring to when he said it could
24 be argued.
25 MS. PONZOLI: All right.
504
1 THE WITNESS: As I sit here right now, I
2 have opinions that could result in arguments for
3 or against, and I have not participated in such
4 a debate. And I find it an interesting academic
5 question, but I don't have a specific position
6 on that right now that I would relate to you.
7 BY MR. GAINES:
8 Q. So what you are saying is until you have
9 both sides of the argument in your head and until you
10 are in the crucible of some debate on this topic, you
11 don't have an opinion one way or the other?
12 MS. PONZOLI: Asked and answered.
13 THE WITNESS: I have not formulated a
14 definitive opinion at this point in time. I
15 have explained to the best of my ability my
16 thoughts about this topic for you and, as I
17 said, it's an interesting academic question that
18 I think has relatively little meaning in terms
19 of studying the ecosystem.
20 And I haven't formulated an opinion as to
21 whether one should say it's an imbalance or not.
22 BY MR. GAINES:
23 Q. What are both sides of the argument that
24 you could envision there?
25 A. Well, again, based on my recollection of
505
1 what the term imbalance means in a general way to the
2 scientific community or to the lay public, general
3 arguments against saying that these are imbalances
4 could include that the types of changes that are
5 occurring are occurring as a result of changes in the
6 hydrology and natural characteristics of the
7 ecosystem at large were not being modified. So in
8 that sense you might say well, it's not really
9 upsetting a balance.
10 On the other hand, one would argue that
11 because the changes in the distribution of community
12 types was occurring as a result of the changes in
13 depth and duration of flooding, that the changes in
14 distribution was having an effect on the ecosystem at
15 large.
16 Q. And when you use the phrase characteristics
17 of the ecosystem at large, what does that mean?
18 A. Well, an ecosystem is the sum total of
19 everything about the place from the substrate that's
20 present to the species of plants that are present to
21 various other descriptors of the ecosystem. That's
22 what I mean.
23 Q. So would the debate there be whether these
24 changes in community type as a result of man-induced
25 changes in hydrology were extensive enough to impact
506
1 on the sum total of the characteristics of the entire
2 ecosystem?
3 A. Well, again, I don't know what the nature
4 of this hypothetical debate would be. I don't know
5 what particular relevance this would have to
6 understanding the ecosystem.
7 MR. GAINES: Would you read back the
8 question, please?
9 (Thereupon, a portion of the record
10 was read by the reporter.)
11 BY MR. GAINES:
12 Q. Regardless of what the nature of this
13 debate would be, the point that I'm trying to get to
14 is when you gave us both sides, in one sense in the
15 first argument you stated that the sum total or the
16 ecosystem at large was not being modified; therefore,
17 would not be considered imbalance. And the second
18 instance you said one could say that since there are
19 changes in vegetative types, that the ecosystem at
20 large is being modified.
21 That's why my question is is it a question
22 of the extent of those changes in some fashion that
23 impacts on which way you come down on that?
24 MS. PONZOLI: I think the concern that
25 Dr. Maffei is trying to convey to you is that
507
1 you are building sand castles here that -- you
2 know, he has tried to go along with you, but he
3 has gone about as far as he can go, Mr. Gaines.
4 MR. GAINES: You may answer the question.
5 MS. PONZOLI: He doesn't have to answer the
6 question if the hypothetical has gone to the
7 point where it has no real meaning to him. He
8 has to understand he doesn't have to answer the
9 question. He is not compelled to have an
10 opinion on your sand castles.
11 May we have the question back again,
12 please?
13 (Thereupon, a portion of the record
14 was read by the reporter.)
15 THE WITNESS: I guess the best that I can
16 do for you in terms of an answer to that
17 question is that in a general sense I would be
18 interested in knowing the impact on the
19 ecosystem.
20 It's my opinion that whether you term this
21 an imbalance or not really is a definitional
22 argument that, as I said earlier, has little
23 meaning to the ecosystem.
24 BY MR. GAINES:
25 Q. Well, let me ask you this. Is the
508
1 Everglades one ecosystem or more than one ecosystem
2 today?
3 A. The historic Everglades in my opinion was
4 an ecosystem.
5 Today portions of the historic Everglades
6 are not part of that ecosystem in the manner in which
7 they were a part historically.
8 My opinion is that the portions of the
9 Everglades which are still maintained as marsh
10 communities are part of a single ecosystem, although
11 they have been separated from one another by the
12 construction of levees.
13 Q. Would you consider the portions of
14 Loxahatchee, WCA-2, WCA-3 and Everglades National
15 Park that are still maintained as marsh to be part of
16 a single ecosystem?
17 A. I believe that was the answer that I gave
18 in response to your previous question.
19 Q. So the answer is yes?
20 MS. PONZOLI: He gave you your answer two
21 times.
22 MR. GAINES: So the answer is yes, Suzan?
23 MS. PONZOLI: He gave you the answer two
24 times, Mr. Gaines.
25 THE WITNESS: I believe it's part of a
509
1 single ecosystem.
2 BY MR. GAINES:
3 Q. Do you know what the concept of edge effect
4 is relative to aquatic communities?
5 A. My understanding of the concept of edge
6 effect is not limited to any particular type of
7 community, aquatic or terrestrial, but refers to the
8 importance of areas within an ecosystem where two
9 community types border one another.
10 Q. Two different vegetative communities
11 bordering one another, that kind of thing?
12 A. Two or more community types bordering one
13 another. If they were the same, they wouldn't be two
14 community types.
15 Q. And what is the effect of that? What is
16 the edge effect?
17 A. Well, a frequently observed effect is that
18 along the edges, along the borders, species diversity
19 is higher than it is in either of the community
20 types.
21 Q. All right. And do you observe edge effect
22 such as that in the Refuge?
23 A. I don't recall quantifying that in the
24 Refuge.
25 Q. Are the canals at the edge of the Refuge,
510
1 are those an edge as we have just used it in terms of
2 edge effect?
3 A. Well, the canals certainly create a
4 discontinuity between one community type and another.
5 Q. And is there an edge effect there?
6 A. There probably is, but I'm not aware of any
7 quantification of such an effect.
8 Q. Has anyone ever attempted to look at that
9 issue and quantify it, to your knowledge?
10 A. I'm not aware of any such efforts.
11 Q. How is the hydroperiod in the Refuge today
12 different from the hydroperiod in the past, in the
13 historic Refuge or historic area there?
14 A. Pre-drainage, is that what you mean?
15 Q. Pre-drainage.
16 A. My opinion is that today the hydroperiod
17 within the Refuge is shorter than it was prior to the
18 1880s when drainage efforts began.
19 Q. That is throughout the entire Refuge?
20 A. With the exception of the portions of the
21 Refuge underlying the canals, yes, it is throughout
22 the entire Refuge.
23 Q. And what was the hydroperiod, can you
24 describe what it was like prior to the 1880s?
25 A. My opinion is that the hydroperiod of the
511
1 area which is encompassed by the Refuge today was
2 multi year, if not multi decade, if not even longer
3 than that.
4 Q. Do you mean that the Refuge would remain
5 inundated for multiple years or multiple decades?
6 A. With the exception of portions of tree
7 islands, that is my opinion of the condition of the
8 area now encompassed by the Refuge in the 1800s prior
9 to initiation of drainage activities.
10 Q. And what was the source of the water at
11 that time? I'm saying in the Refuge, but it wasn't
12 the Refuge yet, but what was the source of the water
13 in that area?
14 A. Rainfall would have been a source of water,
15 as well as land areas to the north, east and west of
16 the area now encompassed within the Refuge.
17 Q. How would the water get from land areas to
18 the north, east and west to the Refuge area?
19 A. Over land flow and probably subsurface flow
20 as well.
21 Q. What percentage of the water was
22 contributed by rainfall as opposed to the land areas?
23 A. I have no idea.
24 Q. When you spoke a couple minutes ago about
25 changes to the depth and duration of water causing
512
1 changes in community types in the Everglades, what
2 community types were you referring to?
3 THE WITNESS: Would you read back the
4 question, please?
5 (Thereupon, a portion of the record
6 was read by the reporter.)
7 THE WITNESS: I generally think of four
8 basic community types. Those four basic
9 community types are slough communities -- I
10 believe I answered a question such as this for
11 Mr. Smith -- wet prairie communities, sawgrass
12 communities, and tree island communities.
13 BY MR. GAINES:
14 Q. And what types of changes in sawgrass
15 communities are occurring as a result of the
16 modification of the depth and duration of water?
17 A. It's my opinion that there has been a
18 general expansion of the areal extent of sawgrass
19 communities within the area encompassed in the Refuge
20 as a result of changes in depth and duration of
21 inundation.
22 Q. Where in the Refuge?
23 A. Everywhere in the Refuge.
24 Q. And what changes in the depth and duration
25 of water, how would you describe those changes and
513
1 explain how they led to a general expansion of
2 sawgrass in the Refuge?
3 A. The changes, as I have indicated earlier,
4 were a reduction in hydroperiod, that is, a reduction
5 in the period of inundation, as well as a reduction
6 in the depth of water.
7 It's my opinion that sawgrass has been able
8 to increase its areal extent because those changes
9 are favorable to the establishment of sawgrass
10 seedlings and to their survival.
11 THE WITNESS: I would like a break.
12 MR. GAINES: By all means.
13 (Thereupon, a recess was taken.)
14 BY MR. GAINES:
15 Q. Dr. Maffei, could you describe for me the
16 differences in the hydroperiod of the Refuge as
17 compared with the natural hydroperiod during the dry
18 season?
19 A. And what do you mean when you say natural
20 hydroperiod?
21 Q. The hydroperiod that you described earlier
22 prior to the 1880s hydroperiod.
23 A. Well, in my prior answer to the question
24 along these lines I indicated that I believed the
25 historic circumstance was that areas remained
514
1 inundated for years, if not decades.
2 Under today's regime areas of the Refuge
3 remain inundated in some cases for only months before
4 dewatering occurs and in some cases for one or a few
5 years before dewatering occurs. So today the
6 hydroperiod, with the exception of the areas under
7 the canals, is shorter than it was historically.
8 Q. What changes have there been in terms of
9 the depth of the water during the winter months or
10 the dry season?
11 THE WITNESS: Read the question back,
12 please.
13 (Thereupon, a portion of the record
14 was read by the reporter.)
15 BY MR. GAINES:
16 Q. And I was trying to use winter months and
17 dry season interchangeably. That might have been
18 imprecise, but I'm talking about the dry season.
19 A. Okay, you are right, that is imprecise, but
20 in the dry season the depth is less than I believe it
21 would have been under historic conditions.
22 Q. Throughout the entire Refuge?
23 A. I believe it's less than it would have been
24 under historic conditions throughout the entire
25 Refuge, with the exception of the areas underneath
515
1 the canals.
2 Q. What about the other WCAs, do you have an
3 understanding as to whether the dry season water
4 levels there are greater or less than they were
5 during the historic period?
6 A. Only in a general way, and I believe that
7 it varies with location, but I don't have a specific
8 sense of what in depth and inundation of duration
9 would have been for the rest of the Everglades to the
10 extent that I do for the area encompassed by the
11 Refuge.
12 My general sense is that throughout much of
13 the rest of the Everglades hydroperiods and water
14 depths have been reduced; however, my sense is that
15 in some areas hydroperiods and water depths may have
16 been increased, and also that because water
17 management of specific areas has changed over time,
18 that various areas may have experienced different
19 relationships. The hydroperiods and depths may have
20 varied with relation to what it was historically in
21 those areas.
22 Q. But you don't have a specific grasp on
23 specific areas where those types of things occurred?
24 A. Well, if you asked me area by area, I would
25 give you my opinion on those to the best that I
516
1 could, but when you ask the question in terms of the
2 rest of the Everglades, I'll give you an answer
3 that's general to the rest of the Everglades.
4 Q. I want to do that in a minute. Let me just
5 leave this area we are in.
6 We were talking about succession and
7 imbalance a minute ago. One of the examples that you
8 gave of succession in the present Everglades is local
9 vegetative changes in response to phosphorus or
10 nutrient concentrations associated with bird
11 rookeries.
12 And is it correct that you would draw a
13 distinction between those nutrients and nutrients
14 coming in agricultural water in terms of whether
15 changes prompted by those nutrients would be
16 succession or imbalance?
17 A. Well, as I indicated earlier, because the
18 term imbalance is incorporated into the law, I
19 definitely would draw a distinction, because the law
20 does not make an effort to regulate the nutrients
21 introduced into the ecosystem or, more properly, in
22 my opinion, the nutrient concentrations created by a
23 bird rookery, and so I would draw a distinction.
24 I think that the types of changes one would
25 see or that one does see are very similar.
517
1 Q. When we talked before about sawgrass
2 communities changing as a result of the depth and
3 duration of water, the example that you gave was
4 increased sawgrass throughout the Refuge as a result
5 of the change in hydroperiod there that you
6 described.
7 Are there other changes relative to
8 sawgrass that are occurring to your knowledge as a
9 result of the modification of the depth and duration
10 of water?
11 And by that I mean the replacement of
12 sawgrass by some other vegetative type, replacement
13 of some other vegetative type by sawgrass.
14 A. Well, with regard to replacement of other
15 vegetative types by sawgrass, I indicate in my
16 opinion that I believe the extent of sawgrass is
17 increasing. Therefore, it must be replacing other
18 vegetative types.
19 With respect to the other question which
20 you asked, it's my opinion that in areas of the
21 Refuge brushy species are displacing sawgrass.
22 Q. What areas would those be?
23 A. Well, there are probably areas throughout
24 the Refuge where that circumstance is occurring to
25 one extent or another. The area of the northern
518
1 portion of the Refuge is an area in which I believe
2 that is occurring more extensively than in other
3 portions of the Refuge, and there is an area in the
4 southern part of the Refuge where I also believe that
5 is occurring more extensively than in other portions
6 of the Refuge.
7 Q. What do you mean when you say brushy
8 species?
9 A. Well, the particular species that comes to
10 mind is wax myrtle, and it's a woody species, and
11 that's what I mean.
12 Q. And what conditions would trigger the
13 replacement of sawgrass by these brushy species?
14 A. Well, I believe that the general conditions
15 that trigger that are shorter hydroperiods and
16 shallower water than the conditions that existed
17 which allow the establishment of the sawgrass in the
18 first instance.
19 Q. You are familiar with the fact that there
20 are cattail in the Refuge, correct?
21 A. I am familiar with that.
22 MR. GAINES: That avoids the no predicate
23 objection.
24 MS. PONZOLI: I thought it was the humor
25 for the day.
519
1 BY MR. GAINES:
2 Q. Are any of the cattail in the Refuge the
3 result of hydrologic manipulations of depth and
4 duration of water?
5 A. It is my opinion that in areas of the
6 Refuge where cattail is not growing, a change in
7 depth or duration at that location cannot result in
8 the growth of cattail.
9 There may be some small circumstances under
10 which that is not, that that general conclusion does
11 not hold.
12 Q. In areas where it is not growing, you say a
13 change in depth and duration cannot result in
14 cattail, correct?
15 A. That is my opinion and, as I stated, there
16 may be some exceptions to that general statement.
17 Q. Okay. What about in areas where cattail is
18 growing?
19 A. In areas where cattail is growing, I would
20 need to ask you to tell me what magnitude of changes
21 in depth you would include in your question.
22 Q. Is there any magnitude of changes in depth
23 and duration of water that you are aware of that
24 could cause cattails to grow and to expand in areas
25 where they are already growing?
520
1 A. Well, cattail is an aquatic species, so if
2 you have cattail present, for example, around the
3 perimeter of an island, the cattail may be excluded
4 from the island because the island was not inundated.
5 If water levels are elevated such that the
6 island now becomes inundated, it may be possible for
7 the cattail to expand onto that island.
8 Q. Let's take a look at Exhibit 1, which was
9 our map of the Refuge.
10 Can you indicate for us, Dr. Maffei, using
11 this map as a reference where, generally speaking,
12 cattails are growing or found in the Refuge?
13 A. Generally speaking? Generally speaking,
14 cattails are found in all portions of the Refuge.
15 Q. And where are they, how many acres of
16 cattail in the Refuge are there at this point?
17 A. Oh, I can't tell you with specificity at
18 this point.
19 As I indicated to Mr. Smith the other day,
20 my estimate of the acreage of cattail on the Refuge
21 is largely based on analysis of a satellite image
22 acquired in 1987, and I believe I indicated to
23 Mr. Smith that is something on the order of 7,000
24 acres of cattail is probably present on the Refuge,
25 but again, that's based on analysis of that satellite
521
1 data.
2 Q. Okay. And how many acres approximately
3 does the Refuge consist of?
4 A. Approximately 146,000 acres.
5 Q. Can you explain your prior answer that
6 cattail is growing throughout the entire Refuge as
7 opposed to the 7,000 acres opinion?
8 MS. PONZOLI: I would object to form. I
9 would not say that the two answers are
10 inconsistent.
11 MR. GAINES: I'm not saying they are
12 either. I'm asking him to explain it.
13 THE WITNESS: As I have traveled through
14 the Refuge in airboat, regardless of what the
15 particular habitats, the characteristic habitats
16 of the area are, on occasion I will come upon
17 small growths of cattail.
18 To a large extent those small growths of
19 cattail I do not believe were apparent in the
20 analysis of the satellite image that I
21 referenced and from which the approximately
22 7,000 acre figure is obtained.
23 MR. GAINES: Could we mark this as 3.
24 (The document was marked
25 Maffei Exb. No. 3.)
522
1 BY MR. GAINES:
2 Q. Take a look at what's been marked as
3 Exhibit 3, Dr. Maffei. Is this the satellite image
4 that you were referring to?
5 A. Well, there is a -- this is not the
6 satellite image. This is a classified GIS map.
7 Q. Can you identify the satellite image you
8 were referring to?
9 A. The satellite image is the scene obtained
10 by the SPOT satellite, I think it was April 1987.
11 This classified map of vegetation on the Refuge was
12 obtained by doing an analysis of the data provided by
13 the satellite scene.
14 Q. And do you place any reliance upon this map
15 for your answers or just upon the unclassified
16 satellite image?
17 A. I place reliance upon this particular
18 exhibit.
19 Q. And is this exhibit the basis of your
20 conclusion that there are 7,000 acres present?
21 A. This, plus my knowledge of the Refuge.
22 Q. Okay. Now before when you talked about
23 cattails throughout the Refuge, my understanding of
24 your answer was that there are at least sparse
25 cattails in all various sectors of the Refuge.
523
1 Is that basically what your answer was?
2 A. I wouldn't describe it that way, no.
3 Q. Tell me how you would describe it.
4 A. I would describe it as there are locations
5 within the Refuge where clumps of cattail occur.
6 Q. And are those clumps parts of the 7,000
7 acres?
8 A. Well, to the extent that those clumps have
9 been identified on this GIS figure, they would be.
10 Q. Well, I'm looking at this GIS figure and I
11 see category number 10, cattail close to the canal,
12 1,746 acres; and category number 18, cattail, 1,856
13 acres.
14 What other categories would you include in
15 there, category number two, sawgrass with invasion of
16 cattail?
17 A. Yes.
18 Q. Any others?
19 A. No, that is all the categories that I see
20 listed here that include cattail as a specific
21 component.
22 Q. In the category entitled sawgrass with
23 invasion of cattail, do you know what percentage of
24 those areas would be cattail and what percentage
25 would be sawgrass?
524
1 A. No, I don't.
2 Q. But in your 7,000 acre estimate, you would
3 include all those acres as part of the 7,000?
4 A. My understanding of what the area would in
5 a general way look like in order to be included in
6 that category would be cattail with -- excuse me,
7 sawgrass with cattail dispersed within or
8 intermingled among sawgrass, and so I would include
9 it.
10 Q. Okay. I'm adding up categories 2, 10 and
11 18 here, and although I didn't do this with a
12 calculator, I get 5,726 acres.
13 Where does the other 1,300 acres come from?
14 A. Once again, as I testified for Mr. Smith
15 earlier in this deposition, an analysis of this image
16 was conducted by the researchers who did this image
17 in the first instance, this classification, I should
18 say, and they concluded from their analysis that
19 their work in analyzing the satellite scene, the data
20 acquired by the satellite and the creation of this
21 classified vegetation map underestimated the presence
22 of cattail by approximately 20 percent.
23 20 percent of the roughly 5,800 acre number
24 which you added that up to is roughly 1,260 acres.
25 Q. Okay. Did you have any participation in
525
1 that analysis that resulted in that conclusion that
2 they had underestimated by 20 percent?
3 A. Other than I knew that they were going to
4 do that and that my job as Refuge biologist was to
5 have a role in that study, I had no direct
6 participation in that particular task that I recall.
7 Q. Going back to Exhibit 1, are there areas
8 that you can identify where the cattails are the most
9 heavily concentrated?
10 A. Well, I don't understand why one would go
11 to Exhibit 1 when Exhibit 3 illustrates the areas
12 where cattail are most heavily concentrated.
13 Q. That's okay. I want to look at Exhibit 1,
14 because we have been marking different features on
15 Exhibit 1, at least informally, and I would like to
16 know with reference to Exhibit 1, and you may look at
17 Exhibit 3 while you do it, but can you describe --
18 frankly, I looked at Exhibit 3 and it looks like
19 pizza to me. I can't make out much of anything on
20 this, so I would like to rely on your expertise to
21 help me through this and tell me where the cattails
22 are.
23 A. Again, I believe I did something of this
24 nature for Mr. Smith, but in a general way there are
25 cattail around the entire perimeter near the canal.
526
1 Q. Okay.
2 A. Width of that band of cattail which
3 surrounds the Refuge varies as you go from point to
4 point along the perimeter. Some places it's a narrow
5 band and it may even be nonexistent in a few
6 locations, but it is a band that gets wider as one
7 goes down the L-7 canal towards where the L-7 and
8 L-39 canals meet at the S-6 pump station.
9 It continues to be a relatively wide band
10 that parallels the L-39 canal, narrows again as one
11 travels past the bend in the L-39 between S-10D and
12 S-10C, and then again parallels the L-39 canal. And
13 at the point where the L-39 and L-40 canals join, it
14 continues paralleling the L-40 canal, and then thins
15 out again as you move north along the L-40 canal.
16 Q. And do you have an opinion as to what is
17 the cause of those cattails being in those locations?
18 A. My opinion is that the environmental
19 feature that is generally not adequate to support
20 cattail in the Everglades is the availability of
21 nutrient, and specifically phosphorus.
22 And we have not done a causal study in all
23 those portions of the Refuge, but I believe that is
24 the environmental factor responsible for the
25 establishment of the cattail in those areas.
527
1 Q. In your opinion, does hydrology or altered
2 hydroperiod play any role in the causation of
3 cattails in those areas?
4 A. Well, as I answered earlier, cattail is an
5 aquatic plant and so with -- I don't have cattail
6 growing on my front lawn, regardless of the
7 phosphorus content of the soil, because I don't
8 maintain a hydrologic regime adequate to sustain
9 wetland plants, but my opinion is that within the
10 marshes of the Everglades, in the absence of adequate
11 phosphorus, there is no hydrologic regime that one
12 can produce that will result in cattail.
13 Q. How much phosphorus is adequate phosphorus?
14 A. Again, as I indicated to Mr. Smith the
15 other day, I don't know with specificity what that
16 number is.
17 Q. Do you know a range?
18 A. I indicated to Mr. Smith that from a quick
19 review of some data, a range may include from 700 to
20 800 grams per kilogram, but I think I also indicated
21 to Mr. Smith that the number could actually be lower
22 or higher, that I have not done an analysis of the
23 data to get any indication of what that quantity
24 would be, and that those numbers were a general
25 impression of quantities of phosphorus that may be
528
1 necessary.
2 I think with the types of data that have
3 been gathered, particularly in the last year by
4 yourselves, we may be able to begin to obtain a
5 better understanding of that requirement.
6 Q. What data is it that you are referring to
7 that you say you have looked at?
8 A. Well, as I indicated to Mr. Smith, I have
9 seen data generated by the entry and access program,
10 as well as soil data obtained by Dr. Reddy, and
11 therefore we are beginning to obtain substantial data
12 sets on soil phosphorus levels.
13 Whether we have adequate information on the
14 community types to go with those soil phosphorus
15 levels, I haven't determined yet.
16 Q. Okay. And when you refer to 700 to 800,
17 that is the unit grams per kilogram?
18 A. I believe that would be an appropriate way
19 to express it.
20 Q. All right. At what depth are you referring
21 to?
22 A. Well, in general, the top ten centimeters
23 of the soil I believe are important to the herbaceous
24 communities.
25 Q. What other nutrients would be important for
529
1 cattail growth other than phosphorus?
2 A. All the nutrients required by cattail would
3 be important for its growth.
4 Q. And what are those?
5 MS. PONZOLI: I don't believe he is listed
6 as a cattail expert.
7 BY MR. GAINES:
8 Q. Are you intending not to testify in your
9 testimony on imbalance with regard to cattail?
10 Because that will really shorten the deposition if
11 that's the case.
12 MS. PONZOLI: I don't think that's the
13 case.
14 MR. GAINES: All right.
15 BY MR. GAINES:
16 Q. What are the other nutrients?
17 MS. PONZOLI: I didn't instruct him not to
18 answer.
19 MR. GAINES: Trying to grease the skids a
20 little.
21 MS. PONZOLI: We appreciate your help.
22 MR. GAINES: Don't mention it.
23 THE WITNESS: Well, nitrogen and potassium
24 are generally considered nutrients, and there
25 are a variety of elements that are described as
530
1 micronutrients, meaning that their presence in
2 small quantities relative to, for example,
3 phosphorus and nitrogen and potassium would be
4 necessary.
5 I don't know with specificity which of
6 those other elements are required by cattail to
7 be able to survive.
8 BY MR. GAINES:
9 Q. Are you aware of any analysis of nitrogen
10 and potassium availability in the areas where cattail
11 has been noted?
12 MS. PONZOLI: May I hear that question
13 again, please?
14 BY MR. GAINES:
15 Q. Are you aware of any analysis of nitrogen
16 and potassium availability in areas where cattail has
17 been noted?
18 MS. PONZOLI: Thank you.
19 THE WITNESS: I am aware that there have
20 been such analyses.
21 BY MR. GAINES:
22 Q. Who did those?
23 A. Well, I believe that Mr. Millar of the
24 South Florida Water Management District, as well as
25 Mr. Federico, and again, I think it was Mr. Rogers
531
1 also did that type of analysis.
2 I believe that Work Order 32 contains
3 analysis of the type you were asking about. I
4 believe that consultants working for your firm have
5 done such analyses. And there may be others that I
6 am unaware of or can't recall at this time.
7 Q. Do all of the micronutrients that you
8 referred to come from the EAA?
9 A. Well, I certainly would be reluctant to say
10 all of anything came from the EAA including
11 micronutrients.
12 I am aware that in the early efforts of
13 individuals to successfully farm within the EAA it
14 was determined that lack of micronutrients in the
15 soils, in the drained soils that had been Everglades
16 was causing either failure of crops or poor growth of
17 crops, and that once micronutrients were added to the
18 soils, the problem of poor crops or crop failures was
19 remedied.
20 Q. If more water were to be held in
21 Loxahatchee than is currently the practice, would the
22 cattails expand as a result?
23 A. More water than what?
24 Q. Is currently the practice.
25 A. As I indicated in a previous answer of this
532
1 nature, I don't think that changes in hydrology
2 generally result in changes in the distribution of
3 cattail, with perhaps the type of exception that I
4 indicated earlier.
5 Q. So that your answer is no?
6 A. I gave you my answer. It is that changes
7 in hydrology do not result in changes in the
8 distribution of cattail with the exception of the
9 types of circumstances which I described earlier.
10 Q. All right. Well, let me just -- I'll leave
11 that, but let me make sure I'm clear.
12 Your opinion is that all other factors
13 being equal, if more water than is currently the
14 practice were held in Loxahatchee, whatever amount
15 you want to imagine of additional water, you would
16 not expect that to cause the cattails to expand as a
17 result?
18 MS. PONZOLI: He has answered that.
19 MR. GAINES: I want to make sure I'm clear.
20 He keeps referring back to three answers
21 previous.
22 MS. PONZOLI: What is your question?
23 MR. GAINES: It's a different question. I
24 want a clearance.
25 MS. PONZOLI: I think you got a clearance.
533
1 I guess I would say you want a yes or a no and
2 it's not possible.
3 BY MR. GAINES:
4 Q. I don't know why it's not possible, but if
5 it's not possible, you can tell me that and give me
6 your answer.
7 Do you understand the question?
8 A. I understand the question.
9 My opinion is that the historic condition
10 in Loxahatchee was that it had deeper water and that
11 periods of inundation --
12 Q. You are misunderstanding my question. I'm
13 not asking about historic. I'm asking about
14 Loxahatchee today as you are familiar with it.
15 You know what the water regime is. You
16 know what the phosphorus is there. You know where
17 the cattails are.
18 And my question is if you changed the
19 amount of water to increase the amount of water
20 that's being retained there, would you expect the
21 cattails to expand if everything else was equal, held
22 equal?
23 MS. PONZOLI: I think the question has been
24 answered to the extent he can, and I guess I
25 have some problems with it, because I guess you
534
1 are presuming that you will expand the breadth
2 and depth of the nutrient-enriched water over
3 some portion of the Refuge; is that part of your
4 hypothesis?
5 MR. GAINES: Would you read my question
6 back? I think it was really clear.
7 MS. PONZOLI: Obviously it's really not,
8 because --
9 MR. GAINES: How do we know? You are
10 making a speech after my question and he hasn't
11 answered it yet. It may be clear to him.
12 MS. PONZOLI: You have asked it several
13 times.
14 MR. GAINES: The question I'm asking now is
15 my most recent one which I tried to make clearer
16 than the previous one.
17 Would you please read it back?
18 THE WITNESS: I also recall that I began
19 answering that --
20 MR. GAINES: Wait.
21 MS. PONZOLI: Let him finish, Mr. Gaines.
22 This isn't right. You have a tendency to cut
23 him off.
24 MR. GAINES: I have a pending question and
25 I want an answer. He can answer how he wants,
535
1 as long as this is an answer to that question.
2 Go ahead.
3 MS. PONZOLI: I'm sorry, you had an answer
4 coming and you chopped it off with another
5 pending question.
6 MR. GAINES: Go ahead and say what you
7 wanted to say.
8 THE WITNESS: I believe I began to answer
9 your question and you stated that I must not
10 understand a question.
11 So ask a question that you think I
12 understand and I'll give you an answer that
13 hopefully suggests to you that I understood your
14 question.
15 MR. GAINES: All right. Well, the question
16 is the pending one.
17 MS. PONZOLI: So would you read it back?
18 (Thereupon, a portion of the record
19 was read by the reporter.)
20 THE WITNESS: My opinion is that holding
21 everything else equal, I expect the cattails to
22 change, regardless of what you do with the depth
23 and duration of water.
24 BY MR. GAINES:
25 Q. And when you say change, you mean expand?
536
1 A. Expand, yes.
2 Q. All right. And if you increase the depth
3 and duration of water, would you expect that to have
4 an impact on the rate or eventual extent of that
5 expansion?
6 A. I am of the opinion that it would not have
7 a discernible impact on the rate of expansion.
8 Whether it would have absolutely or not, I don't have
9 an opinion, but it's my opinion that holding
10 everything else equal such as the nutrient and
11 phosphorus content of the water, the extent of
12 cattails will continue to expand.
13 Q. What effect would such a change in the
14 water regime have on the survival of sawgrass?
15 A. It's my belief that increasing the depth
16 and duration of inundation may have little effect on
17 the survival of sawgrass.
18 Q. What effect, if any, would it have on
19 sawgrass?
20 A. It's my opinion that an increase in the
21 depth and duration of flooding would have an effect
22 over a long period of reducing the areal extent of
23 sawgrass.
24 Q. Why?
25 A. Excuse me?
537
1 Q. Why?
2 A. Why do I think that would be the effect?
3 Q. Yes.
4 A. Part of maintenance of sawgrass stands is
5 the ability for new sawgrass plants to be
6 established, and I believe the ability of new
7 sawgrass plants to become established is dependent in
8 part on dewatering an area, and if the duration of
9 inundation is increased, then opportunities for
10 establishment of sawgrass plants would be reduced.
11 Q. We talked about the edge effect earlier.
12 Is cattail species typically found
13 associated with the edge effect?
14 A. Cattail -- would you read the question,
15 please.
16 (Thereupon, a portion of the record
17 was read by the reporter.)
18 BY MR. GAINES:
19 Q. Maybe the word effect shouldn't have been
20 in the question. Is it typically associated with the
21 edge as we have used it?
22 A. I don't know that cattail is typically
23 associated with the edge effect. I guess maybe I
24 don't understand what your question is.
25 Q. All right. Well, maybe I don't either.
538
1 What about disturbance?
2 A. What about it?
3 Q. Does disturbance of the soil have any role
4 in cattail growth or the introduction of cattail into
5 an area?
6 A. As I believe I indicated to Mr. Smith
7 previously in this deposition, I am of the opinion
8 that disturbance of the soil may have an effect
9 relative to whether cattail can survive in a location
10 or not.
11 Q. And is the effect that it causes it to
12 survive more readily or causes it not to survive?
13 A. Well, I don't think disturbance itself
14 causes anything relative directly to cattail.
15 As I explained previously in this
16 deposition, disturbance of the soil can have an
17 effect on the concentrations of various constituents
18 such as nutrients in the soil over a period of time.
19 Q. And the area along the canals where the
20 cattails are found, has there been disturbance in
21 those areas?
22 A. My understanding is that along a strip of
23 ground which parallels the canal, there was a
24 disturbance of the soil as well as the disturbances
25 that were created by removing portions of the soil
539
1 from the locations where the canals now are and
2 putting that soil in the locations where the levees
3 now sit.
4 Q. And are cattails now found in those
5 disturbed areas?
6 A. Cattails are present in some of those
7 disturbed areas.
8 Q. Are you able to quantify it?
9 MS. PONZOLI: Excuse me, quantify what?
10 MR. GAINES: The percentage of the
11 disturbed areas that you are referring to where
12 you can find cattails.
13 THE WITNESS: I'm sure we would be able to
14 quantify that.
15 BY MR. GAINES:
16 Q. Have you ever attempted to?
17 A. I have never attempted to survey the areas
18 that I believed were disturbed by construction and
19 quantify the percentage of that area that is
20 inhabited by cattail versus some other species.
21 My observation of the Refuge from being at
22 various portions of the Refuge as well as from seeing
23 various images obtained at altitude is that some of
24 the areas disturbed by construction have cattails
25 growing in them at varying densities and some do not.
540
1 Q. Are the cattails in those areas included
2 within your 7,000 acre estimate?
3 A. Yes.
4 Q. Are you familiar with a paper by Drs. Rader
5 and Richardson concerning invertebrates?
6 A. I'm familiar with that paper. I should
7 maybe qualify that by saying I recall the paper. At
8 this point I don't recall with specificity specific
9 numbers, but just have a general remembrance of what
10 the paper attempted to demonstrate.
11 Q. Okay. What was the general concept that
12 the paper was demonstrating?
13 A. The general concept put forward by those
14 authors, as I recall, was that addition of nutrients
15 to the Everglades ecosystem resulted in an increase
16 in the abundance and diversity of species.
17 And there was a general implication that,
18 as I recall, and perhaps I'm reading something into
19 it and creating something, but my general remembrance
20 was that there was an implication that perhaps we
21 should not worry about whether the Everglades is
22 being altered as a result of agricultural discharges
23 because of their conclusions.
24 Q. Did it say that or is that just your
25 inference?
541
1 A. Well, the difficulty I'm having is that
2 when that paper was published, there were, as I
3 recollect, newspaper articles regarding that paper,
4 and I seem to recall that Dr. Rader also presented
5 his findings at various fora such as the Water
6 Management District Board and the Everglades
7 Protection District -- excuse me, the -- whatever
8 that body is that taxes the EAA for environmental
9 purposes, and that the newspaper accounts also put
10 forth that general sense of the authors.
11 So that's why I have this confusion or lack
12 of specificity as to whether the paper itself said
13 that or those were impressions that I obtained by
14 reading the newspaper articles generated as a result
15 of that study or if it's the result of hearing
16 Dr. Rader present his findings at the Water
17 Management District board or if it's the result of my
18 participating in a deposition of Dr. Rader over at
19 that --
20 Q. Okay, it doesn't matter, because I'm not
21 really interested in that portion of it.
22 A. Okay.
23 Q. Did you disagree, taking out whatever
24 anybody said about the implications or the inferences
25 there, did you disagree with the basic conclusion,
542
1 that addition of nutrients resulted in increase of
2 abundance and diversity of species?
3 A. I disagreed with the basic conclusion.
4 Q. Why is that?
5 A. I don't believe Dr. Rader did a study to
6 see if introduction of nutrients into the Everglades
7 resulted in an increase in the abundance of species
8 and diversity.
9 Q. Is it your recollection that it was
10 purported in the paper that such a study had been
11 done?
12 A. It's my recollection that it was reported
13 that that was what was done by it in the study.
14 Q. Are you quarreling with the methodology of
15 the study or are you saying that factually what they
16 say they did, they didn't do?
17 MS. PONZOLI: Object to form. Presumes
18 that's his quarrel. It may be something else, I
19 don't know.
20 MR. GAINES: If it is, he will tell me, or
21 something else.
22 THE WITNESS: As I recall, my objection was
23 the methodology that was incorporated.
24 BY MR. GAINES:
25 Q. Dr. Maffei, you participate in the SAGE
543
1 Committee; is that correct?
2 A. I did participate in SAGE meetings. I was
3 a member of SAGE. I don't right now know whether
4 SAGE is still a body that exists or not. I have not
5 attended a SAGE meeting for perhaps almost a year.
6 Q. Do you recall when you were participating
7 in SAGE the motion that you made with regard to STAs
8 being an appropriate method of improving water
9 quality and with regard to the settling rate constant
10 being an appropriate method to determine land area
11 necessary and that eight meters per year was an
12 appropriate value for that settling rate?
13 A. I recall making a motion to that effect.
14 Q. As we sit here today, do you still agree
15 with the contents of that motion?
16 MS. PONZOLI: Object to form.
17 THE WITNESS: In general, I would say I do
18 agree with the contents of that motion.
19 BY MR. GAINES:
20 Q. Are you finished with your answer?
21 A. Well, I'm thinking. As you probably know,
22 additional analysis has resulted in an indication
23 that an appropriate settling constant to utilize
24 would be in the neighborhood of 10.2 instead of 8.
25 I'm trying to think about whether the 8 becomes
544
1 inappropriate as a result of that.
2 I believe that the 10.2 number or whatever
3 it is exactly would be a more appropriate number to
4 use as we sit here today.
5 Q. Is that based on your own personal
6 evaluation of the settling rate?
7 A. No, it's not.
8 Q. Did you discuss this motion with any SAGE
9 members outside the SAGE meeting prior to the SAGE
10 meeting?
11 A. I probably did.
12 Q. Can you recall who?
13 A. I don't recall with specificity who I did.
14 The best I could do for you would be to guess who I
15 probably would have talked to, but I won't do that.
16 Q. All right, I don't want you to guess. Let
17 me ask you this. Did you get any input or assistance
18 from the Department of Justice with regard to the
19 contents of that motion?
20 MS. PONZOLI: I don't think you can ask
21 about attorney/client communications. I don't
22 think that's appropriate.
23 MR. GAINES: This is with regard to the
24 SAGE Committee.
25 MS. PONZOLI: He still is represented by
545
1 DOJ. He is still our client. I mean you are
2 going to tolerate our asking Dr. Davis the
3 communications between Peeples, Earl and
4 Dr. Davis?
5 BY MR. GAINES:
6 Q. Let me ask you this. Did you have any
7 conversations with individuals from the Department of
8 Justice in connection with other SAGE members with
9 regard to this motion?
10 MS. PONZOLI: That's the same question.
11 It's the same problem. We can just work this
12 out right now.
13 MR. GAINES: Non-federal SAGE members.
14 MS. PONZOLI: Let's get it straight right
15 now. If we are going to inquire into
16 attorney/client, and Dr. Davis isn't even a
17 client, he is a consultant for Peeples, Earl.
18 It's not even as intimate a relationship. So
19 let's just get it straight.
20 If the League and US Sugar are going to
21 tolerate those kinds of inquiries, then I want
22 to know, because we can do it. I just want an
23 even playing field.
24 MR. GAINES: Non-privileged context where
25 there were other non-federal clients present,
546
1 was that motion discussed with the DOJ
2 attorneys? I'm not trying to get any privilege.
3 MS. PONZOLI: No, I don't know that it was.
4 Frankly, I don't recall that it was. I don't
5 really care.
6 I really care about how we are going into
7 attorney/client communications. I only care
8 about the principle here, not the substance of
9 it.
10 MR. GAINES: That's why I said in a context
11 where it would not have been privileged, where
12 there were other non-federal clients, personnel
13 or individuals involved in the conversation.
14 MS. PONZOLI: Okay.
15 THE WITNESS: As I indicated earlier, I
16 don't recall with specificity who I may have
17 talked about this motion with prior to my making
18 it.
19 BY MR. GAINES:
20 Q. Is that the best of your recollection?
21 A. Well, I'm still thinking.
22 Q. All right.
23 A. My belief is that I would not have
24 discussed this motion in the manner in which you
25 asked the question.
547
1 MR. GAINES: Okay, let's break for lunch.
2 (Thereupon, a luncheon recess was taken.)
3 BY MR. GAINES:
4 Q. Dr. Maffei, welcome back.
5 A. Same to you.
6 Q. Earlier we discussed, you were discussing
7 the cattails in the Refuge throughout the Refuge and
8 you described some clumps at various isolated parts.
9 What is the cause to your understanding of
10 those?
11 A. Well, I don't have a specific scene to
12 determine a specific cause. I can give you an
13 opinion as to what is occurring.
14 Q. Okay. Are you giving me your opinion?
15 A. Oh, is that a question? Do you want my
16 opinion?
17 Q. Yes, that's why we are all gathered here.
18 A. When you ask the question, I'll try to give
19 you the best answer I can.
20 Q. I'm sorry, I thought you said you don't
21 have specific causes, but you can give me an opinion.
22 A. That's what I said. You asked for a cause
23 and I answered that question.
24 Q. Okay, let me make it clear. Please do,
25 sir.
548
1 A. My opinion is that where I observed clumps
2 of cattail, it is there because either at that point
3 in time or sometime prior to that nutrient
4 availability, probably phosphorus availability in
5 particular, was adequate to allow the cattail to
6 survive in that location after a seed either
7 germinated there or after the plant established
8 itself there through vegetative reproduction from a
9 plant at a different location.
10 Q. And do you have an opinion as to what the
11 potential source or sources of those nutrients would
12 be?
13 A. Well, my experience on the Refuge of common
14 potential sources of concentrated nutrient, increased
15 nutrient availability would be wading bird rookeries
16 and alligator, what are commonly referred to as
17 alligator holes.
18 Q. Do you attribute any other sources?
19 A. There may be other sources, but you asked
20 me what I commonly attributed those to, I think, or
21 what I attributed sources to, and those are the two
22 that I think are responsible for the majority of the
23 occurrences of clumps of cattail that I observed.
24 Q. Would peat fires be a potential source of
25 nutrient?
549
1 A. Well, a fire burning in the peat has the
2 potential for producing an effect whereby the
3 concentration of phosphorus is increased.
4 It's not necessarily a source of phosphorus
5 to the ecosystem. It may be considered to be,
6 depending on perhaps the depth to which the peat
7 burns.
8 Q. And would that increase in concentration as
9 a result of a peat fire be the type of phenomenon
10 that could make cattail growth possible?
11 A. I think that when phosphorus availability
12 as well as the availability of other nutrients that
13 cattail requires is adequate, then cattail can
14 survive there.
15 Q. Would the drying out of the peat and
16 oxidation as a result of that be another potential
17 source of nutrient?
18 A. Well, fire is oxidation.
19 Q. I'm talking about a dry down, the absence
20 of a fire.
21 Are you aware of whether the peat can dry
22 out and oxidize and release phosphorus in the absence
23 of fire?
24 A. I am aware that that's a possibility. I am
25 aware that that type of phenomenon has apparently
550
1 occurred in the Everglades Agricultural Area and is
2 probably a factor in the concentrations of phosphorus
3 one would find in soils in the Everglades
4 Agricultural Area.
5 Q. Are you aware of that type of phenomenon
6 occurring in any of the portions of the WCAs?
7 A. The type of phenomenon that's occurring
8 within the Everglades Agricultural Area?
9 Q. The phenomenon of the soil being drained
10 and being exposed to the air as a result and
11 oxidizing.
12 A. Well, I'm aware that on occasions the soils
13 are drained and some portions of them are exposed to
14 the air. And I suppose to some degree oxidation of
15 the soils can occur under those circumstances.
16 Q. Are you aware of anyone who has done any
17 studies to quantify that?
18 A. Within the conservation areas?
19 Q. Yes, within any of the conservation areas.
20 A. I don't recall seeing any report or knowing
21 of anybody endeavoring to determine the extent to
22 which soils within the conservation areas oxidize
23 during periods when they are dry.
24 Q. On the STA motion to SAGE that we talked
25 about right before lunch, did you draft that motion
551
1 yourself or did anyone else have any input into that?
2 A. My memory is that I drafted it myself, and
3 as I indicated earlier, I don't have specific memory
4 of talking to anyone else about that. I probably
5 would have talked about the wording of that with at
6 least one other person.
7 Q. Who would that have been?
8 A. That would have been Dr. Soukup.
9 Q. But you don't specifically recall talking
10 to him about it?
11 A. No, I don't specifically recall talking to
12 him about it. I believe I recall that it was an idea
13 that I had that I would introduce such a motion, and
14 I proceeded on that idea.
15 Q. Okay. Now will the STAs and the BMP
16 program as contained in the SWIM Plan result in
17 compliance with the interim and long-term standards
18 for Loxahatchee that are contained in the SWIM Plan?
19 A. The interim and long-term marsh limits or
20 levels, whatever they are called?
21 Q. Yes, sir.
22 A. I don't know.
23 Q. What is your best sense of that?
24 MS. PONZOLI: Are you asking for a guess,
25 Mr. Gaines?
552
1 MR. GAINES: Well, if all he would be doing
2 is guessing, then he can tell me that and I'll
3 go to another question, but if he has something
4 better --
5 THE WITNESS: Well, my best sense is that I
6 still don't know.
7 BY MR. GAINES:
8 Q. Well, can you talk in terms of probability?
9 In other words, do you think -- I mean when you say
10 you don't know, I guess that means you don't know 100
11 percent.
12 Do you think there is a 90 percent chance
13 that they will achieve the goals?
14 A. I think it's interesting that you interpret
15 my saying I don't know to some percentage of I don't
16 know.
17 Q. You have no idea?
18 MS. PONZOLI: That's not what he said. He
19 said he doesn't know. His answer is his answer,
20 Mr. Gaines. He has given it to you twice.
21 THE WITNESS: At this point I would like to
22 know what the question was again.
23 BY MR. GAINES:
24 Q. Will the STAs and the BMPs, the strategies
25 contained in the SWIM Plan achieve compliance with
553
1 the interim and long-term marsh limits that are
2 contained in the SWIM Plan?
3 MS. PONZOLI: That's been asked and
4 answered.
5 MR. GAINES: Well, he asked me to ask the
6 question again.
7 THE WITNESS: And now that you put it that
8 way, I don't know.
9 BY MR. GAINES:
10 Q. What is it about it that creates doubt in
11 your mind or why don't you know?
12 A. Well, I believe it was you and I who had a
13 discussion yesterday regarding the lack of a
14 statistical relationship between the surface inflows
15 and the quality of water at specific marsh stations.
16 And in order to know the answer to your
17 question, I would have to know the relationship that
18 I told you yesterday I don't know, and that's why I
19 don't know.
20 Q. All right, fair enough.
21 Can you describe for me what you did to
22 prepare for your deposition in terms of, other than
23 talking with counsel, what you reviewed; for example,
24 other depositions in the case?
25 A. Well, I looked through portions of
554
1 Mr. Neely's most recent deposition.
2 I did look through portions of Mr. Millar's
3 deposition, but about --
4 Q. That was on the helicopter bucket thing we
5 talked about yesterday?
6 A. Right, but I believe I would have done that
7 to try and satisfy my curiosity relative to the
8 question with regard to whether I had a deposition
9 coming up or not, because I was intrigued by the
10 question that came up in Dr. Davis' deposition.
11 And I looked through some, at portions of
12 Work Order 32 to refamiliarize myself with the
13 documents that were contained within it.
14 And that's pretty much the extent of what I
15 did to prepare myself for this deposition.
16 Q. What portions of Work Order 32 did you look
17 at?
18 A. Well, I pulled out each document to see
19 again what was contained within the final report. I
20 looked through portions of the synthesis report. I
21 looked through portions of the wading bird/fishery
22 portion of the report. I skimmed through the portion
23 of the report that discusses vegetation relationships
24 to various environmental factors.
25 And as I said, I think I pulled out all the
555
1 other portions just to see what they were.
2 Q. Do you have a working knowledge of the Lox
3 Hydro Model that's part of Work Order 32?
4 A. I would have to say that I don't believe I
5 do have what I consider a working knowledge of the
6 Lox Hydro Model.
7 Q. We were talking a minute ago about
8 statistical relationships and correlations in one
9 context. Let me ask you, we talked before lunch
10 about the cattails in the Refuge.
11 Is there a correlation in a statistical
12 sense that's been determined between the cattails in
13 the Refuge and phosphorus inputs in the inflow water?
14 A. I don't recall seeing a relationship
15 between cattail and phosphorus inputs into the Refuge
16 in the inflow water.
17 Q. You mentioned also just prior to lunch that
18 the Rader and Richardson invertebrate reports were
19 studied. You had some disagreement with the
20 methodology.
21 Can you articulate for me what that
22 disagreement was?
23 A. Well, my specific problems, and I think
24 that the problem with that that I think provides the
25 most difficulty with the kind of interpretation they
556
1 made to that data was that they studied what I'll
2 describe as holes in the vegetation, holes within the
3 cattail stands.
4 In other words, there are locations that
5 are fairly few in a small areal extent where it
6 appears a -- and again, this is a hypothesis -- but
7 where it appears that perhaps a clone of cattail has
8 died for some reason.
9 So instead of having the solid cattail, you
10 now have solid cattail and come upon then an area of
11 open water. And these areas vary in size from -- I
12 won't even give you an estimate. I can't quantify
13 that right now, but they are relatively small.
14 And it's my understanding that their study
15 occurred within these relative or within these open
16 water areas within the stand of cattail. And then
17 what they did was extrapolate the results that they
18 obtained in these small areas to the entire area
19 covered by cattail.
20 My opinion is those are two totally
21 different physical environments, and therefore, the
22 type of expansion of the results that they did was
23 inappropriate.
24 Q. Would Hestor Dendy's sampling have been a
25 more appropriate method?
557
1 A. It would not make any difference to me what
2 particular sampling techniques were conducted within
3 these holes.
4 I am not questioning, for example, that
5 what they say they found was not indeed there. I
6 think a problem in addition was that their study took
7 place either during or immediately after a drought, I
8 don't recall, and that would impact the distribution
9 of organisms particularly with respect to those
10 locations that were near the canals.
11 It may influence distribution, let me put
12 it that way. But still, my concern is the external
13 validity of that test; that is, whether it was valid
14 to do collections of organisms within these areas
15 that occupy a relatively small percentage of the
16 cattail-infested areas and then infer that the same
17 types of results would be obtained throughout the
18 stands of cattail, much as the Dosing study that was
19 done in Everglades National Park was criticized
20 because of the fact that the channels were
21 established within wet prairie communities and
22 therefore it was suggested that the results of that
23 could not be extrapolated to sawgrass communities.
24 Q. Would you agree with that criticism of the
25 Dosing study of Everglades National Park?
558
1 A. As I recall, the individuals who conducted
2 the Dosing study at Everglades National Park did not
3 attempt to do the same type of extrapolation that
4 Dr. Rader attempted in that study.
5 Q. So you think that that criticism, that
6 similar type criticism was not well founded?
7 A. Well, I think that any study has to
8 consider the internal validity of the study and the
9 external validity of the study, and in my opinion,
10 whether the researchers established studies which
11 have high internal validity and low external validity --
12 or low internal validity and high external validity
13 are not necessarily an issue, but what is an issue is
14 the interpretation that the researchers try to put on
15 the results of their study.
16 Q. What studies do you rely upon to support
17 your hypothesis regarding the causation of cattail in
18 the Refuge generally and the 700 to 800 grams per
19 kilogram soil phosphorus levels specifically?
20 MS. PONZOLI: Object to form.
21 THE WITNESS: I want to say once again that
22 with respect to that range, I indicated that --
23 BY MR. GAINES:
24 Q. Let me withdraw that, because you have
25 answered that portion already that you looked at
559
1 everyone's data, so let me just ask you the more
2 general question, unless you wanted to answer
3 something else.
4 A. Well, I just want to make it clear that I
5 don't know that I looked at everyone's data. I
6 looked at some data, data sets that I had, and tried
7 to quickly determine based just on looking at
8 individual values what might be the range of
9 phosphorus that is important.
10 Q. Okay.
11 A. A study that I think is useful in this
12 regard is Work Order 32, because it does find a
13 relationship between the presence of cattail and soil
14 phosphorus levels.
15 Work Order 32, though, measured, did an
16 analysis of soil phosphorus that's somewhat different
17 than the analysis typically used by soil scientists
18 when they are analyzing soil cores.
19 So Work Order 32, the numbers relative to
20 the amount of phosphorus in the soil necessary to
21 sustain a cattail plant are not directly comparable
22 to the types of numbers present in other data sets
23 that I have looked at.
24 Q. What is your understanding of what Work
25 Order 32 contains with regard to hydrology or
560
1 hydroperiod as causative of the cattail growth?
2 A. Well, my understanding of the results of
3 that study indicate that there is a particular
4 average, if you will, type of hydrology under which
5 cattail exists and that a number of other communities --
6 and I would prefer to have the document in front of
7 me to be able to answer this accurately, but that at
8 least, for example, some other communities share
9 similar hydrologic regimes as cattail, but that the
10 presence or absence of cattail under that type of
11 hydrologic regime is dependent on the characteristics
12 of the soil.
13 Q. With regard to the 20 percent error that
14 was determined in the satellite image, do you know
15 how that figure was arrived at?
16 MS. PONZOLI: Object to form.
17 THE WITNESS: Well, as I recall, they
18 looked at some aerial photographs and compared
19 the interpretation of aerial photographs to the
20 interpretation that was applied to those
21 locations by analysis of the satellite image and
22 then scored a number of areas as to whether
23 cattail were believed to be at a location in the
24 aerial photograph and compared that to whether
25 cattail was identified to be in the same
561
1 location by the classification of the satellite
2 imagine.
3 And as I recall, what they found was that
4 the interpretation of the photographs indicated
5 the presence of cattail in locations where the
6 classification of the satellite image data did
7 not, and that the difference would have
8 indicated 20 percent error in the classification
9 of the cattail; that is, they concluded that the
10 classification of the satellite image data
11 resulted in underestimating the presence of
12 cattail by approximately 20 percent.
13 BY MR. GAINES:
14 Q. Okay. Are there any other studies that you
15 used or relied upon for the relationship between
16 cattail and phosphorus besides Work Order 32?
17 A. Well, there are other studies that discuss
18 these types of issues. I believe that Mr. Steve
19 Davis at the Water Management District did a number
20 of studies looking at the relationship between
21 cattail and phosphorus, as well as sawgrass and
22 phosphorus.
23 Q. Are you aware of the names of any of those?
24 Are you relying on those studies?
25 A. I think that -- and I have read those
562
1 studies. They have shaped my understanding of the
2 ecosystem.
3 And as I sit here right now, I can't tell
4 you which specific aspects of the documents I would
5 rely on, because I have read dozens, if not hundreds
6 of documents relating to the Everglades all during my
7 tenure at the Refuge, and they shape my
8 understanding.
9 Q. Are there any other specific ones that come
10 to mind besides this Steve Davis' collected works, I
11 guess, and the Work Order 32 report?
12 A. Well, there is information in work that
13 Dave Swift did. There is information in work that
14 Nancy Urban did. There is information in work that
15 Dr. Ron Jones has done. There is information in some
16 work that I have participated in beyond Work
17 Order 32.
18 There are other studies. A lot of people
19 have been doing this. There is information in the
20 work of Dr. Curtis Richardson that I think is useful
21 in understanding these issues.
22 Q. Do any of the studies or work of those
23 individuals you just named show a statistical
24 relationship between phosphorus and cattail?
25 A. Besides the one Work Order 32?
563
1 Q. Oh, I did not understand you -- is it your
2 understanding that Work Order 32 shows a statistical
3 correlation between cattail and phosphorus?
4 A. It's my understanding that Work Order 32
5 shows a statistical relationship between cattail and
6 soil chemistry, of which soil phosphorus is a part.
7 Q. All right. Other than that one?
8 A. I think I at least have seen drafts of
9 reports that attempted to show such a correlation and
10 I don't recall right now whether the final reports
11 had a correlation or not.
12 Q. What reports were those?
13 A. Well, the report that Nancy Urban had done.
14 Beyond that, I don't recall seeing such a
15 relationship.
16 Q. Is the Nancy Urban report that you are
17 thinking of entitled "Urban, Davis and Aumen
18 Fluctuations In Sawgrass and Cattail Densities in the
19 Everglades Under Varying Nutrient, Hydrologic and
20 Fire Regimes, January 1992"?
21 A. That sounds like it.
22 Q. All right. Do any others come to mind
23 specifically?
24 A. No. As you know, there is a large volume
25 of literature relative to the Everglades.
564
1 Q. Are you familiar with Lou Toth's study?
2 A. Yes, I do recall Lou Toth's study.
3 Q. What does that study entail?
4 A. I think Lou Toth's study is, generally my
5 recollection is that it's impacts of altered
6 hydrology on sawgrass and cattail.
7 Q. Is that a study that you would rely upon?
8 MS. PONZOLI: Object to form.
9 THE WITNESS: I read the study and it has
10 provided information to me which I think is, I
11 include when I am thinking about the Everglades.
12 BY MR. GAINES:
13 Q. Well, would it be accurate to say that when
14 you are thinking about the Everglades, you generally
15 include everything you have ever read about the
16 Everglades?
17 MS. PONZOLI: Object to form.
18 THE WITNESS: Well, my understanding of the
19 Everglades is shaped by things that I have read
20 and data that I have seen and my own personal
21 observations out there.
22 There are things that have been written
23 with which I don't agree based on my own
24 personal observations of the system. There are
25 things written with which I agree based on my
565
1 personal observations of the system. And there
2 probably are other things written that I haven't
3 had the opportunity to observe or study
4 personally.
5 So in general, I'll rely on what was
6 written, as long as I didn't find significant
7 problem or fault with the methodology employed
8 or the interpretation imparted to the
9 information.
10 BY MR. GAINES:
11 Q. We have talked some about exotic
12 vegetation.
13 Are there any exotic animals or fishes in
14 the Refuge?
15 A. Well, fishes are animals in my lexicon.
16 Q. All right. Well, in your lexicon are there
17 any exotic animals out there including fishes for the
18 lay people?
19 A. There are.
20 Q. What would those be?
21 A. Well, there are a large variety of exotic
22 fishes. The most numerous I believe is one fish
23 known as the oscar.
24 Another that I am aware of but probably
25 much less numerous is one known as a walking catfish,
566
1 a very interesting fish, interesting looking fish,
2 and I believe it's called a plecostamus, is in the
3 Refuge. At least various anglers had at times
4 withdrawn some fish from the canal.
5 I'm sure there are others.
6 Q. Any terrestrial animals out there, exotic?
7 A. Well, in certain areas we do have some
8 exotic lizards and anoles, I believe.
9 There are exotic birds out there. We
10 occasionally see parrots, for example. There are
11 birds that are out there that have been on this
12 continent for a couple hundred years, but they were
13 introduced by people. Starlings, for example, is an
14 exotic bird in the sense that it was introduced by
15 people.
16 Cattle egrets are present on the Refuge;
17 however, there is in my mind question whether they
18 are properly termed exotic or not, because I believe
19 cattle egrets arrived on this continent not as a
20 result of human activities, but under what we would
21 more typically call zoogeographic processes, for
22 example. Some of them might have up and flown across
23 the Atlantic Ocean.
24 We have in some areas of the Refuge on
25 occasion feral pigs, which I would include in this.
567
1 There is undoubtedly more.
2 Q. That's a pretty good sampling, I think.
3 What impact do they have on the native flora and
4 fauna, these species?
5 A. Well, some of them I think would have
6 relatively little impact. Walking catfish, for
7 example, my recollection is that there was a great
8 deal of concern about the impact of walking catfish
9 on the ecosystems of South Florida when these
10 organisms were first discovered in the area, but I
11 think those concerns have never been realized. The
12 populations are very small and I'm not aware that
13 they would have any impact.
14 I must say I'm not aware of, I don't recall
15 reading any studies on any of these organisms and the
16 impacts they may be causing.
17 Oscars, on the other hand, are very
18 abundant, and my own observations of oscars is that
19 they create nests similar to nests created by some
20 other native fishes and that oscars are very
21 aggressive, and so they may be having an impact on
22 native fishes.
23 Q. All right.
24 MR. GAINES: Madam court reporter, do you
25 have the xerox copies of the documents that were
568
1 produced at the beginning of the deposition, the
2 ones that you provided us and you made copies of
3 overnight?
4 (Thereupon, a recess was taken.)
5 (The document was marked
6 Maffei Exb. No. 4.)
7 BY MR. GAINES:
8 Q. Dr. Maffei, we have marked as Exhibit 4 the
9 1993 Annual Narrative Report for the Arthur
10 R. Marshall Loxahatchee National Wildlife Refuge.
11 Can you tell me what your participation or
12 input was into the preparation of this report?
13 A. I reviewed some of the material, perhaps
14 all of it, I can't say that for sure, that was
15 written by Bill Thomas, Su Jewell, and Fred Broerman.
16 Q. Did you write any of this yourself?
17 A. I was editing some portions that they
18 submitted. I don't think I wrote any of it myself.
19 I mean I may have changed a sentence they had in
20 their draft that I looked at, but beyond that, I
21 don't think I prepared any of the text. I don't have
22 any recollection of doing that.
23 Q. All right.
24 A. I might say, though, that they may have,
25 and I don't know that they did this or not, they may
569
1 have taken information from previous annual reports
2 or other documents and incorporated them into what
3 they wrote.
4 And if they did that, it's possible that
5 what they, the source material might have been
6 something I originally wrote.
7 Q. Okay. Let me ask you to take a look at the
8 first inside page there, Roman numeral ii.
9 In the next to the last paragraph on the
10 page, the final sentence states that "Typical
11 Everglades vegetation of wet prairies, sloughs,
12 sawgrass marshes, and tree islands ranging in size
13 from less than 1 acre to over 300 acres comprises 99
14 percent of the Refuge."
15 Would you agree with that statement?
16 A. No, sir.
17 Q. What would your disagreement be, and what
18 percentage I guess would you insert there if that's
19 what your disagreement is?
20 A. It would be probably, and I'm not
21 performing any calculations, but it would be probably
22 between 85 and 90 percent.
23 Q. And what would the remaining 10 to 15
24 percent consist of?
25 A. Well, that would consist of, among other
570
1 things, cattail stands, canals, levees, managed
2 impoundments on the east and west side, cypress
3 swamp. I think that's pretty much -- might consider
4 roads and parking lots.
5 Q. Is cattail an exotic plant to the
6 Everglades or a native plant?
7 A. Well, my belief is that it is a native
8 plant to the South Florida area, and I believe I told
9 Mr. Smith as such earlier in this deposition.
10 Q. And what is it about the cattail then that
11 is not typical Everglades vegetation?
12 A. Well, in areas where it creates dense
13 stands of cattail that tower above the water 10 or 15
14 feet, I don't believe those circumstances,
15 particularly when these stands of cattail go on for
16 hundreds, if not thousands of acres, I have never
17 seen anything either in historic documents or in
18 documents generated in more recent times to indicate
19 to me that that condition is a typical Everglades
20 vegetation.
21 Q. And I notice that you did not include
22 melaleuca on your list. Is that an oversight?
23 A. Yes, that was an oversight. I would not
24 include melaleuca as a typical Everglades community,
25 nor would I include Brazialian pepper that grows
571
1 along the levees or the occasional Australian pine
2 tree that grows scattered along levees and in some
3 instances even within the marsh.
4 Q. How many acres of melaleuca are there in
5 the Refuge?
6 A. Well, I don't know with certainty how many
7 acres of melaleuca there are within the Refuge. It's
8 a difficult question to answer.
9 Q. Do you have an estimate?
10 A. Well, when I discuss melaleuca distribution
11 or the amount of melaleuca on the Refuge, I generally
12 discuss it in terms of the melaleuca distribution
13 maps which I have been involved in preparing.
14 Q. Is there such a map contained in this
15 annual report?
16 A. I don't know. I'll look.
17 Q. Well, I don't think there is.
18 A. Okay.
19 Q. I saw you thumbing through it, so I thought
20 maybe you were turning to it.
21 A. No, I was just keeping my hands busy.
22 (Discussion held off the record.)
23 BY MR. GAINES:
24 Q. And melaleuca maps, how are those prepared?
25 A. Well, aside from other maps of melaleuca
572
1 that may have been prepared in the past, I referred
2 to two specific maps.
3 These two specific maps were prepared using
4 geographical information systems which I have,
5 specifically an ERDAS system and an ARC/INFO system.
6 And I also, in order to prepare those maps, used a
7 program known as Quick Basic.
8 Q. Were those among your documents, those
9 maps, that were produced?
10 A. They were among my documents. They have
11 been produced.
12 Q. All right. Your analysis did not result in
13 any estimate of acreage of the Refuge impacted by
14 melaleuca?
15 A. Well, the data which was gathered to create
16 those maps was gathered in a manner similar to the
17 manner in which the data on wading bird distribution
18 in the portion of Work Order 32 that we discussed
19 earlier in this deposition was gathered; that is,
20 observers in an airplane flew over the Refuge and
21 looked at areas of the Refuge below the airplane.
22 And for the purposes of this survey the Refuge was
23 divided into cells such as we discussed yesterday or
24 the day before, whenever that discussion took place.
25 And the observers then scored each cell
573
1 based on the number of individual melaleuca trees
2 they saw within the cell or the number of what we
3 referred to as melaleuca heads that they saw within
4 the cell. And I believe there were five categories.
5 Q. The five categories being from dense to
6 sparse or something along those lines?
7 A. Well, the five categories I think being
8 from no melaleuca present to the last category I
9 think was more than 50 trees, or I don't remember if
10 it's four or more what we consider heads or five or
11 more what we consider heads.
12 I don't recall at this point exactly what
13 the density of that last category was. It really
14 wasn't -- well, those were the categories.
15 Q. Okay. Let me ask you to look at page 27.
16 The second full paragraph, last sentence states
17 "According to Refuge wildlife biologist Mark Maffei,
18 20,000 acres of the Refuge are considered to be
19 moderately to heavily infested with melaleuca."
20 A. Yes.
21 Q. Do you agree with that statement?
22 A. I believe that's consistent with the
23 information provided on the maps that we have
24 developed.
25 Q. And are you able to quantify for me let's
574
1 say in an acre, in one of those 20,000 acres how many
2 trees there would be in a heavily-infested acre and
3 how many trees there would be in a
4 moderately-infested acre?
5 A. Well, I can't do that for you with respect
6 to this number, because that, what this statement
7 references is the two categories that were scored,
8 both of which contained melaleuca heads.
9 In other words, the moderately -- the
10 category that I considered moderately infested were
11 those cells which contained at least 50 trees and
12 maybe less than four heads. Again, I'm not quite
13 sure at this point where that, whether