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 it's less than
14   four or four, four or less.
15             And the heavily infested would be those
16   cells that contained probably four or more heads and
17   at least 50 trees.  But the difficulty in giving you
18   the answer per acre is that these cells are in excess
19   of an acre.
20       Q.    What is the size?
21       A.    I believe it's in the neighborhood of 102
22   or 103 acres is the size of one of these cells.  So
23   if there were 50 trees in that 102 acres, it would be
24   listed as heavily infested in our process.
25       Q.    All right.

                                                 575

 1       A.    If there were four heads, it would be
 2   listed as heavily infested under that analysis.
 3             That's why I can't say with specificity how
 4   much area all the melaleuca on the Refuge would
 5   occupy if it was all in one continuous stand, just
 6   like the same is true of I can't say with specificity
 7   how much cattail is scattered throughout in these
 8   little clumps in the Refuge if they were all put
 9   together in one stand.
10       Q.    So the 20,000 acres then would be, that's a
11   number of acres in the cells that have been
12   categorized as moderate or heavy?
13             MS. PONZOLI:  May I hear that again,
14        please?
15             MR. GAINES:  I'm just saying the 20,000
16        acres is the number of acres if you add up all
17        the cells that have been categorized in the
18        moderate or heavy --
19             MS. PONZOLI:  Thank you.
20             THE WITNESS:  I think that's the correct
21        interpretation, yes.
22   BY MR. GAINES:
23       Q.    When you talk about heads of melaleuca, can
24   you describe for me what is a melaleuca head?
25       A.    Sure I can.

                                                 576

 1       Q.    Would you, please?
 2       A.    Yes.  Melaleuca is a tree that produces a
 3   tremendous number of seeds throughout its lifetime.
 4   And in South Florida as opposed to its native
 5   Australia, it produces even more seeds, I believe.
 6             The melaleuca tree is unusual with respect
 7   to most other plants in that it does not drop the
 8   seeds on a regular basis for the most part.  While I
 9   think there is some release of seeds on an ongoing
10   basis, I believe the vast majority of seeds produced
11   by the melaleuca tree are retained on the tree.
12   These seeds are very small and they are retained in
13   small capsules on the branches of the tree.
14             When the tree is stressed in some fashion,
15   for example, fire, the capsules holding the seeds --
16   and I believe there can be upwards of 400 seeds in a
17   single capsule, I have counted over 250 seeds out of
18   one capsule -- these seeds are released over the
19   marsh.
20             What we commonly observe then is that there
21   will be a single seed bearing tree in the marsh, and
22   for some reason or other, that tree will release its
23   seeds.  Many of those seeds will germinate and small
24   trees will begin to grow, and you will have a
25   relatively even aged or same aged stand of seedlings

                                                 577

 1   developing.
 2             When these trees grow, they grow in
 3   generally a circular pattern or it may be somewhat
 4   elliptical based on the prevailing winds or some
 5   other feature which shapes the distribution of the
 6   seeds.  And they frequently have a dome shape on
 7   them, probably as a result of seeds closer to the,
 8   what we refer to as the mother tree germinating
 9   earlier and getting additional germination out
10   towards the edges.  That's my hypothesis of the dome
11   shape when it occurs.
12             And these groups of trees, often very dense
13   groups of trees, are referred to as heads.
14       Q.    And do they, are the heads, do they spread
15   vegetatively?
16             MS. PONZOLI:  Do you understand the
17        question, Dr. Maffei?
18             THE WITNESS:  Yes, I understand the
19        question.
20             My belief is that in general, they do not
21        spread vegetatively, but I do know that if you
22        treat a melaleuca tree with an herbicide, you
23        may kill the above ground part of that tree and
24        fail to kill the roots, under which
25        circumstances then the roots may generate new

                                                 578

 1        stems, which become trees in their own right.
 2             So melaleuca can reproduce vegetatively
 3        under some circumstances.  I don't know that
 4        that is their typical mode of reproduction out
 5        there.
 6   BY MR. GAINES:
 7       Q.    Can you give me a, just a ballpark range
 8   without needing to be comprehensive of what the size
 9   of these melaleuca heads is in the Refuge?
10       A.    Yes, I would say the typical size of a
11   melaleuca head is in the neighborhood of an acre to
12   an acre and a half.
13       Q.    And what would be the largest area of
14   melaleuca, solid area or melaleuca head that you are
15   aware of in the Refuge?
16       A.    I think the largest area of melaleuca, and
17   I couldn't necessarily call it a melaleuca head at
18   this point, but I think it's a particular island
19   which has melaleuca on it, which funnily enough is
20   known as Melaleuca Lane, and I think it's
21   approximately 70 acres in size.
22             And while the entire island may not be
23   infested with melaleuca, there are other species
24   present on that island, I consider it to be virtually
25   entirely infested.

                                                 579

 1       Q.    Is melaleuca found in different, all the
 2   different types of habitats in the Refuge?
 3             In other words, would you find it in
 4   sawgrass, in tree islands, in sloughs and other
 5   areas?
 6       A.    Melaleuca is commonly found in sawgrass
 7   areas and on tree island areas.  It occurs in wet
 8   prairie areas, but not extensively, not to the
 9   extent, for example, that it occurs in sawgrass
10   areas.
11       Q.    What types of conditions are the most
12   conducive to melaleuca being able to thrive or get
13   established in an area?
14       A.    It's my belief that in general, melaleuca
15   does best when it has a moist seed bed similar to the
16   requirements of many other plants that are found in
17   the Refuge, and that as long as the melaleuca
18   seedling can get large enough so that it is not
19   topped by water for a period of time, and I don't
20   know what that would be, the tree appears to be able
21   to survive.
22       Q.    Take a look, please, at the first paragraph
23   again on page 27 discussing efforts throughout the
24   year in controlling exotic and noxious plants on the
25   Refuge.

                                                 580

 1             Is it appropriate in that paragraph to have
 2   included cattail on that list?
 3       A.    I don't find a problem with the inclusion
 4   of cattail on that list.
 5       Q.    You would consider that to be an exotic
 6   and/or noxious pest plant?
 7       A.    In this context it's considered to be a
 8   noxious pest plant, one at which control efforts were
 9   targeted.
10       Q.    What is the impact of melaleuca on the
11   areas where it becomes established?
12       A.    Melaleuca, unfortunately, appears to be
13   very well adapted to Everglades marshes, to the type
14   of environment that's present in the Everglades, that
15   is, warm and wet.
16             A lone melaleuca tree standing out in the
17   marsh does not really have much of an impact until it
18   drops its seeds and establishes a head.  The heads,
19   as I indicated, can have very dense populations of
20   melaleuca.
21             The seedlings, as they grow up, grow so
22   thickly together because of the tremendous number of
23   seeds that these trees can drop that they virtually
24   touch one another.  In fact, they are so thick that I
25   have often heard them referred to and refer to them

                                                 581

 1   myself sometimes as dog hair stands.  The trees are
 2   just so dense that virtually nothing else can exist
 3   within those communities.
 4       Q.    Would that include wildlife?  Does it have
 5   an impact on wildlife?
 6       A.    The area, while birds can land in the tops
 7   of those trees, in a thick dog hair stand really not
 8   much else could be in there.
 9             I have seen evidence in some older age
10   stands of animal activity in those, but I don't
11   consider them good wildlife habitat, with the
12   exception that when we go in and kill a melaleuca
13   head, some of the wading birds seem to enjoy using
14   those areas as nesting substrate.
15             And in some of the older melaleuca heads
16   where natural thinning processes have occurred, in a
17   few instances the areas, particularly if they are
18   surrounded by sloughs, have been used as rookery
19   locations.
20       Q.    Is the onset or invasion or whatever you
21   want to call it of melaleuca in the Refuge, would you
22   consider that to be an example of succession?
23       A.    I consider it to be invasion of an exotic
24   species.
25       Q.    Do nutrients play any role in the melaleuca

                                                 582

 1   invasion other than the fact that plants need
 2   nutrients as a general rule to grow?
 3             What I'm talking about is the anthropogenic
 4   nutrients in surface waters flowing into the Refuge,
 5   do they have any connection to the melaleuca?
 6       A.    There is nothing I have seen relative to
 7   where melaleuca grows or the density of its growth
 8   that suggests to me that melaleuca is in any way
 9   nutrient limited within the marshes of the Refuge or
10   other parts of the Everglades.
11       Q.    On page 27, "With no natural enemies in
12   South Florida and an ideal growing climate, melaleuca
13   now threatens to permanently replace and eliminate
14   native Everglades flora and fauna."
15             Is that a statement you would agree with?
16       A.    I believe that that is a potential.
17       Q.    The following sentence refers to, as you
18   discussed, the ability to release millions of seeds,
19   and then it states, "enabling the trees to completely
20   take over an area within 30 years and become the
21   dominant plant species."
22             My question there is do you have an
23   understanding of what size of an area is being
24   referenced there?
25       A.    No, I don't.

                                                 583

 1       Q.    Do you have an opinion as to how large an
 2   area a melaleuca could become the dominant plant
 3   species in a 30-year time period if it was not
 4   controlled?
 5       A.    In a general way I do.  I think it can take
 6   over thousands and thousands of acres if efforts
 7   aren't made to control it, and I think that type of
 8   phenomena has been observed in areas of the
 9   Everglades west of Miami.
10       Q.    And you are involved, correct, in the
11   melaleuca control program or plan that has been
12   instituted at the Refuge?
13       A.    I am involved in that.
14       Q.    How is that going?  Are you winning that
15   battle or is the -- I see references here to 210,000
16   trees were killed by crew members in 1993.
17             Is the amount still increasing despite the
18   control efforts?
19       A.    That's a difficult question to answer.
20             My sense is that the amount of melaleuca on
21   the Refuge increased substantially as a result of the
22   drought of 19, generally considered in 1989 and 1990,
23   and that many of the seedlings which became
24   established in that drought have only more recently
25   become big enough to really be visible as melaleuca

                                                 584

 1   trees.
 2             I say only recently.  They probably were
 3   not visible during the survey in which the data that
 4   produced the first of the two maps that I referenced
 5   was collected.  They probably were visible during the
 6   survey in which the second of the two maps was
 7   obtained.
 8             So with respect to that, I don't think that
 9   the number of trees which we have removed as part of
10   our program exceeds the number of trees which became
11   established during that drought.
12             Whether or not the number of trees removed
13   in '93 exceeds the number of trees established in
14   '93, I don't know.
15       Q.    Do you have a feel for whether that would
16   be a close call?
17             I mean here is my question.  I don't have a
18   feel for whether 210,000 trees is a drop in the
19   bucket or a real good hit or somewhere in between.
20       A.    I don't either, which is why I recently
21   asked the melaleuca crews to begin a different way of
22   conducting the program.
23       Q.    What is that new way of conducting the
24   program?
25       A.    Originally the individuals who would go out

                                                 585

 1   into the marsh and kill trees were allowed to go
 2   pretty much where they wanted to treat trees.  At
 3   times I would suggest particular locales where I
 4   thought they should go, but they were allowed to go
 5   wherever they wanted to go.  Part of the reason for
 6   that was the morale of the individuals involved, but
 7   also part of the reason was our interest in beginning
 8   an effort to kill these trees.
 9             And so the kind of question that you asked
10   me was a question that I had difficulty answering.
11   In fact, I really couldn't answer it.
12             More recently, about the beginning of this
13   year, I directed the individuals who go out in the
14   marsh to kill melaleuca trees to go to specific cells
15   such as the cells identified in the wading bird study
16   that we discussed earlier in this deposition or the
17   cells that we discussed relative to the mapping of
18   the distribution of melaleuca, and to stay within the
19   boundaries of the particular cells until they were
20   satisfied that they had removed all the melaleuca
21   trees within that cell.
22             I had observed that the individuals on the
23   melaleuca crews frequently would go to a head of
24   melaleuca trees, spend several days treating, several
25   days or more or less treating the trees within that

                                                 586

 1   head, and then leave that area.  And they would not
 2   treat the one or two or dozen trees standing out in
 3   the wet prairies in the adjacent vicinity.  And
 4   therefore, while large numbers of trees were being
 5   killed, we were not extirpating the trees from
 6   portions of the Refuge.
 7             So the revision that I made for this
 8   program is designed to try to be able to say when the
 9   question is posed how many acres, for example, have
10   been cleared of melaleuca, I want to have some basis
11   on which to say a number of acres.  And in that way
12   we can proceed in a systematic manner to treat the
13   entire Refuge and we won't be chasing melaleuca, as
14   it were.
15       Q.    There is a reference also in the second
16   paragraph here, the next to last sentence, "Recent
17   surveys indicate melaleuca now infests three million
18   acres of original Everglades habitat."
19             Are you familiar with what that is
20   referring to there?
21       A.    I think that is a survey that was done by,
22   I think that's a reference to a survey or report done
23   by the South Florida Water Management District.  I
24   think the individual primarily responsible for that
25   was a Mr. Francois LaRoche.

                                                 587

 1       Q.    I don't think he is on anybody's witnesses
 2   list.
 3             (Discussion held off the record.)
 4