629
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 V
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 - - -
Friday, March 25, 1994
24 319 Clematis Street, Suite 500
West Palm Beach, Florida 33401
25 8:50 a.m. - 2:05 o'clock p.m.
630
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
631
1 I N D E X
2 - - -
3 WITNESS: DIRECT CROSS REDIRECT RECROSS
4 Mark D. Maffei, Ph.D.
5 By Mr. Gaines 632
6
- - -
7
E X H I B I T S
8
- - -
9
10 NUMBER PAGE DESCRIPTION
11 Maffei Exhibit 5 637 Proposed Interim
Regulation Schedule
12
Maffei Exhibit 6 644 Everglades SWIM Plan
13 Figure 20
14 Maffei Exhibit 7 725 Drinking Water Research
Center, Fax from Ron
15 Jones to Mark Maffei
16 Maffei Exhibit 8 725 Bates DMM 0027212
Map of Loxahatchee National
17 Wildlife Refuge
632
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 A. Good morning.
12 Q. What is your title with the Refuge, your
13 position?
14 A. My title is wildlife biologist.
15 Q. Are you the senior biologist at the Refuge?
16 A. Yes, I am.
17 Q. What would you consider to be the primary
18 ecological problems facing the Refuge today in order
19 of importance?
20 MS. PONZOLI: Object to form.
21 THE WITNESS: I believe there is three
22 primary ecological problems, and I don't rank
23 one as being more or less significant than the
24 others in terms of their impacts on the
25 ecosystem or potential impacts on the ecosystem.
633
1 BY MR. GAINES:
2 Q. And what are those?
3 A. The pollution entering the Refuge through
4 the surface discharges; the invasion of the Refuge by
5 exotic species, and most specifically melaleuca --
6 most of the other exotic species that I have seen do
7 not cause me great concern; and the water management
8 of the Refuge in terms of the lack of the ability of
9 fish and wildlife to water put into the Refuge to
10 meet the needs of the ecosystem.
11 Q. On that last one, are you talking about
12 quantity and timing only or are you including quality
13 in that as well?
14 A. Well --
15 Q. Or that was number one?
16 A. Number one was the quality of the water.
17 Q. So number three is quantity and timing?
18 A. Number three references the fact that when
19 there is a perceived water shortage in South Florida,
20 while other users of water can obtain water, the
21 Refuge is not considered a user that has a right. It
22 has a right, but for amounts of water, the amount
23 that it currently is allowed to get is so low that it
24 is below the point at which the ecosystem is
25 impacted.
634
1 Q. Is it correct that when there is an extreme
2 water shortage that the Refuge is forced to take
3 the -- well, the wildlife and preservation aspects of
4 the Refuge are forced to take a back seat to the
5 water supply functions?
6 A. Well, let us say that I don't believe that
7 the concept of shared adversity is a concept which,
8 while in place in the state's water policy, it's not
9 a concept which is put in practice, in my opinion.
10 Q. Is it your opinion that the Refuge gets
11 more than its share of the adversity in an extreme
12 water shortage situation?
13 A. I believe that's the case, at least up
14 until recent times.
15 Q. Other than that aspect of water management
16 as being an ecological problem, is the quantity and
17 timing of the water deliveries to the Refuge included
18 within that third category as well?
19 A. I don't have any concerns with the quantity
20 and timing of water deliveries to the Refuge.
21 Q. Do you have any concerns over the practices
22 relating to when water is released from the Refuge,
23 aside from this water shortage time issue that we
24 already discussed?
25 A. Well, as you undoubtedly are aware, I have
635
1 proposed modifications to the Interim Water
2 Regulation Schedule for Conservation Area-1, which is
3 the conservation area which largely comprises the
4 Loxahatchee Refuge, and the main effect were that
5 interim schedule to be official would be an effect on
6 the operation of the S-10 structures.
7 Q. Is the need that you see for the Proposed
8 Regulation Schedule, are you including those concerns
9 within this third category?
10 I'm just trying to understand whether your
11 third category about water management includes that
12 type of issue or just the water shortage issue that
13 we talked about.
14 A. Well, that issue that I indicated was a
15 problem is incorporated. A remedy to that issue is
16 incorporated into the Interim Regulation Schedule
17 which has been proposed.
18 Q. All right. Just so I'm clear, in times
19 when we are not in an extreme water shortage and
20 there is a shared adversity or more than your share
21 of adversity imposed on the Refuge, but just in other
22 times, not extreme water shortage times, is it your
23 opinion that the hydrologic regime that the Refuge is
24 operating under constitutes one of these problems?
25 A. I would say that the hydrologic regime
636
1 under which the Refuge has been operated, as I
2 indicated earlier in this deposition, has had an
3 effect on the relative distribution of the various
4 community types on the Refuge. The severity of any
5 particular portion of all that is encompassed under
6 the concept of hydrologic regime varies in my
7 opinion.
8 I don't necessarily consider the low, the
9 reduced water depths and reduced periods of
10 inundation the same type or intensity of problems for
11 the ecosystem that I consider the failure of the
12 Refuge to be afforded water during periods of water
13 shortage.
14 Q. And you also don't consider it to be the
15 same type of threat or whatever the phase was that
16 you just used as the other two categories that you
17 listed, pollution through the surface discharges and
18 the melaleuca exotic species?
19 A. That's right, I don't necessarily consider
20 it to be the same.
21 Q. Would you consider it to be less of a
22 threat or less of a problem?
23 A. Well, at this point I don't necessarily
24 even consider it to be much of a problem at all,
25 because it's my belief that the proposed modification
637
1 to the Interim Schedule will be accepted and
2 therefore the regime under which the water is managed
3 on the Refuge will be modified to accommodate the
4 types of concerns that I had over the previous, over
5 the existing interim schedule.
6 However, the concern that I have with
7 regard to the low water, even though what I have
8 attempted within the construction of the proposed
9 schedule does take that into account, will still not
10 necessarily result in water being on the marsh during
11 periods of extreme drought, although the schedule
12 makes an attempt to insure that the Refuge isn't
13 dewatered to the extent that it has been under the
14 current interim schedule.
15 (The document was marked
16 Maffei Exb. No. 5.)
17 BY MR. GAINES:
18 Q. All right, sir. Let me to ask you to take
19 a look at what I have marked as Exhibit 5.
20 Is this the, Exhibit 5, is this the
21 Proposed Interim Regulation Schedule that you are
22 referring to?
23 A. I believe this is the Proposed Regulation
24 Schedule as it currently exists. Some of the wording
25 for the various zones may be a little bit different
638
1 in the official description of the schedule. I can't
2 identify any differences or inaccuracies, but there
3 may be somewhat different wording in those zones. I
4 can't testify as to the accuracy of that right now.
5 Q. Did you prepare this document?
6 A. I did prepare this document.
7 Q. Is there wording in here that's not your
8 wording?
9 A. Well, if you look at the second page of
10 this --
11 (Thereupon, there was an interruption
12 in the proceedings.)
13 MR. GAINES: Let's go back on the record.
14 BY MR. GAINES:
15 Q. Dr. Maffei, before we were interrupted, I
16 had asked whether any portion of this document was
17 not your wording or had been prepared by someone
18 else.
19 A. I put the document together; however, that
20 portion of the document on page 2 which is the graph
21 illustrating the proposed WCA-1 regulation schedule
22 and the wording below it is roughly the proposal that
23 I made back in 1989 to modify the schedule for the
24 area, but the proposal that I made was looked at by
25 the Corps of Engineers and the South Florida Water
639
1 Management District and, in consultation with us,
2 some modifications were made to it.
3 In addition, as I indicated, I am not
4 certain right now whether this figure was put
5 together in a way that accurately states all the
6 words that go along with the schedule for Zone A1,
7 Zone A2, Zone B and Zone C.
8 It was my intent when I prepared this to
9 put enough information there and probably all the
10 information relative to those various zones, but I
11 also made an effort to insure that this document was
12 only two pages in length, and so I may have left off
13 a sentence or more if it was necessary to accommodate
14 that concern.
15 Q. Is this, though, essentially the Proposed
16 Regulation Schedule that there were just recently
17 hearings about and that you are seeking to get
18 approval of or enactment of?
19 A. This is essentially that schedule, yes.
20 Q. Okay. Let me direct you to page 3, little
21 Roman numeral iii of the 1993 annual report, which
22 references the current regulation schedule, I
23 believe, and discusses five objectives that that
24 schedule was designed to achieve.
25 Do you see where I'm referring to?
640
1 A. Yes, I do.
2 MR. GAINES: Suzan, I had him look at that
3 while you were on your break, so he has already
4 looked at it.
5 BY MR. GAINES:
6 Q. Are those five objectives accurate in your
7 mind as to what the current regulation schedule was
8 designed to achieve?
9 A. It's my understanding that concerns of the
10 nature listed there were considered by those who
11 developed the current Interim Regulation Schedule for
12 Water Conservation Area-1.
13 Q. Would the same five objectives also have
14 been considered in the development of the Proposed
15 Regulation Schedule?
16 A. No, I do not believe that I would say that
17 is the case.
18 Q. How can you explain to me which
19 objectives -- were there additional objectives or
20 were some of them eliminated?
21 A. Well, I would prefer to tell you what my
22 objectives were when I sat down and drew a different
23 interim regulation schedule that I proposed.
24 Q. Before you embark on that, do your
25 objectives fit into any of these numbered categories
641
1 here?
2 A. Perhaps in a loose sense they could be
3 considered to, but I would prefer just to tell you
4 what I was attempting to do.
5 Q. Please do, okay.
6 A. It was my and still is my belief as
7 discussed at length earlier in this deposition that
8 water management at the Refuge, the regulation
9 schedules which have been in effect for the Refuge
10 during the past 30-plus years have resulted in water
11 depths and periods of inundation shorter than and
12 lower than those which I think would be most
13 beneficial for the area.
14 So when I drew the schedule which I
15 eventually proposed to replace the Current Interim
16 Schedule, my objective was simply to increase water
17 depths and increase periods of inundation. I was
18 aware and still am aware that the Corps of Engineers
19 has certain concerns relative to the regulation
20 schedule for the Refuge.
21 An example of those concerns is concern for
22 the integrity of the levees. I took that into
23 account when I prepared this schedule.
24 Another concern that I believe has been
25 expressed by the Corps at various times is storage
642
1 capacity within the system in the event of major
2 rainstorm events. I also took that into account
3 during the preparation of the schedule.
4 By my recollection, that is all that I was
5 considering when I prepared this schedule; however,
6 some of the other concerns listed on page Roman
7 numeral iii that you pointed out to me are met by the
8 schedule, although those concerns were not in my
9 opinion part of my method of fashioning this
10 proposal.
11 Q. Okay, let me ask you this. If you were
12 able to devise a regulation schedule for the Refuge
13 which only was concerned with the health of the
14 Refuge, vegetation types, the wildlife and waterfowl
15 there and enhancing or maintaining the ecological
16 character of the Refuge, would your proposed
17 regulation schedule differ from that that is
18 currently proposed; and if so, how?
19 A. Well, I don't know that it would differ
20 much, if at all.
21 Q. Are you finished?
22 A. No, I'm trying to think about specific
23 issues of the schedule with relation to your
24 question.
25 The one question I have in my mind about
643
1 this schedule with regard to your question is whether
2 I would have attempted to have an even higher
3 maximum. I don't know that I would have, although as
4 I indicated earlier, I was aware of a concern on the
5 part of the Corps with regard to the integrity of the
6 levees.
7 And in fact, when I drew this schedule and
8 handed it out in early 1989 at a meeting of the SWIM
9 Advisory Committee, there were those who indicated to
10 me that the Corps would never let me bring the water
11 levels above 17 feet. And I believe some individuals
12 were somewhat surprised that that did not cause a
13 concern for the Corps.
14 So with regard to whether I would have
15 asked for higher water levels or not, I don't know.
16 I am satisfied that the 17 1/2 level will be
17 beneficial to the marsh.
18 Q. All right. When you refer in the Proposed
19 Regulation Schedule under the category Problem,
20 second paragraph on the first page, it states, second
21 sentence, "In practice, the marsh is dewatered almost
22 every year."
23 When you refer to the marsh being
24 dewatered, does that have a set meaning in your mind,
25 that phrase, or is it various degrees of dewatering
644
1 from time to time?
2 MS. PONZOLI: Object to form.
3 THE WITNESS: It's various degrees of
4 dewatering from time to time.
5 BY MR. GAINES:
6 Q. Is there in your mind a problem with
7 ponding or pooling of water in the southern portion
8 of the Refuge near the S-10 structures?
9 A. I don't know what you mean by a problem
10 with pooling of water near the S-10 structures.
11 (The document was marked
12 Maffei Exb. No. 6.)
13 BY MR. GAINES:
14 Q. Take a look at what's been marked as
15 Exhibit 6, which is Figure 20 from the supporting
16 information document of the Everglades SWIM Plan.
17 This is a map entitled Generalized Map of
18 the WCAs Indicating Areas of the Marsh Presumed by
19 the South Florida Water Management District to be
20 Affected by Overdrainage or Prolonged Hydroperiods.
21 Are you familiar with this figure?
22 A. This looks like a figure I have seen
23 before. I have a question for you.
24 Q. Yes, sir.
25 A. Did you say this was out of the SWIM Plan
645
1 which is being challenged?
2 Q. Yes, sir.
3 A. Okay.
4 Q. Page 121 of the supporting information
5 document.
6 A. Okay.
7 Q. With regard to the depiction of the Refuge
8 on this map, there is a diagonally hatched area in
9 the southern end near the S-10 structures which the
10 key indicates as areas of extended hydroperiod.
11 Would you disagree with that
12 characterization in that area?
13 A. I would.
14 Q. And is that because of your prior, based on
15 your prior testimony that you felt the entire Refuge
16 had a shorter hydroperiod than the historic one,
17 which is of several years?
18 A. Well, it's not based on my prior testimony.
19 It's consistent with my prior testimony.
20 Q. It's based on that same information?
21 A. Based on the same types of information
22 which we discussed when we discussed my opinions
23 relative to hydroperiod and depths of water found at
24 locations throughout the Refuge.
25 Q. Is there more water, is there a longer
646
1 hydroperiod in the area indicated by this cross
2 hatching than there is in other portions, the other
3 portions of the Refuge?
4 A. I don't believe this accurately reflects
5 the length of hydroperiods found in portions of the
6 Refuge relative to one another.
7 Q. And what is inaccurate about this
8 depiction?
9 A. Well, I will give you general impressions
10 of inaccuracies that I have.
11 Looking at the figure, I see places within
12 the figure where the three zones come together; that
13 is, there are places on this figure where over-
14 drained areas, areas of marsh having a more typical
15 hydrologic regime, and areas of extended hydroperiod
16 according to this figure touch.
17 I have a lot of question how that could
18 happen where virtually at the same location you have
19 these three circumstances occurring.
20 Q. All right. Let's address that one. If you
21 assume that it appears that they have used very
22 straight precise lines on this figure and it states
23 it's a generalized map of areas presumed to be
24 affected by these conditions, if you assume that this
25 is not intended to be a precise depiction of this,
647
1 but just a generalized indication of where these
2 areas are such that you wouldn't have a point where
3 all three areas literally touch each other, but just
4 a generalized indicator, would that then cure that
5 deficiency or issue?
6 A. Probably not.
7 Q. Okay.
8 A. And at this point I don't recall exactly
9 what you had asked me to do for you with regard to
10 this.
11 Q. Okay. I had asked you to tell me what you
12 found inaccurate about it. And the first was that
13 you had this area where the three touch.
14 Is there anything else?
15 A. Oh. Well, if that was your question --
16 Q. I think it was.
17 A. I don't believe there is areas of the
18 Refuge at all that have extended hydroperiods over
19 what they were under the historic circumstance.
20 Q. I believe we were talking about it as these
21 areas relative to each other.
22 A. Okay. The area that they have identified
23 as extended hydroperiod is far in excess of any areas
24 on the Refuge -- is in excess of what I would have
25 considered in that particular portion of the area to
648
1 have an extended hydroperiod relative to other parts
2 of the Refuge.
3 Q. Is there some area down in that location
4 that would have an extended hydroperiod relative to
5 the rest of the Refuge?
6 A. Relative to other locations in the Refuge,
7 I believe there is, but not necessarily relative to
8 the rest of the Refuge.
9 I think that if I was drawing a map such as
10 this in a general way such as this, trying to
11 indicate relative hydroperiods across the Refuge in
12 some general way, I might perhaps end that zone
13 roughly at the S-10D structure rather than bringing
14 it all the way up north of the S-6 structure as they
15 have done in this figure.
16 Q. All right.
17 A. In addition, there is an area not quite in
18 the center part of the Refuge, somewhat south of the
19 central part of the Refuge which it has been my
20 experience is an area that has an extended
21 hydroperiod relative to other areas of the Refuge.
22 So I would have identified that area as
23 being an area relative to hydroperiod similar to the
24 area at the south end of the Refuge.
25 Q. And what about the areas depicted as
649
1 overdrained areas which have experienced invasion by
2 terrestrial species?
3 Are there areas there, is that
4 over-inclusive or under-inclusive?
5 A. Well, the term overdrained is one which I
6 would not use, but again, keeping within the context
7 of this particular figure and hydroperiods relative
8 from location to location within the Refuge, at the
9 northern end of the Refuge I would have identified
10 portions that have shorter hydroperiods relative to
11 the rest of the Refuge.
12 And in addition, there is a portion at the
13 southern end of the Refuge that I would have
14 indicated has hydroperiods shorter relative to other
15 parts of the Refuge.
16 Q. Is the area in the northern part that you
17 referred to basically at the very top, the apex there
18 of the Refuge?
19 A. Well, I don't know what you are limiting
20 the very top to, but it would be at the top of the
21 Refuge.
22 Q. Can you approximate it? There is a series
23 of horizontal dotted lines there on this figure.
24 Are you able to count down approximately
25 how many lines that area would extend without holding
650
1 you to cartographer precision?
2 A. Well, again, this is a very general answer,
3 because it's in my opinion a very general question,
4 but relative to other parts of the Refuge, I might
5 count down about ten of those lines and say that
6 portion of the Refuge has in some measure a
7 hydroperiod shorter than other parts of the Refuge,
8 but were I to do something of this nature, I think I
9 would make an effort to quantify what I was talking
10 about rather than give general impressions such as is
11 found in this figure.
12 Q. Okay. Are there vegetative impacts
13 associated with the areas that are overdrained or
14 whatever term you would prefer relative to the other
15 parts of the Refuge?
16 A. As I discussed earlier in this deposition,
17 I believe that reductions in depth of water and in
18 periods of inundation do have an effect on the
19 communities and species present in areas, so the
20 answer again, I don't accept necessarily the term
21 overdrained, but I do think that the fact that these
22 areas have shorter hydroperiods relative to other
23 portions of the Refuge has resulted in those areas
24 having different abundances and distributions of
25 various community types than what is found in other
651
1 parts of the Refuge.
2 Q. Is there a vegetative impact also in the
3 area on the southern portion as you have by your
4 testimony modified this figure? Is there also a
5 vegetative impact there?
6 In other words, you said it was less than
7 the area actually depicted here. You cut it off at
8 the 10-D structure, but is there also vegetative
9 impact as a result of that area having a relatively
10 longer hydroperiod than other portions of the Refuge?
11 A. I'm not sure I understand your question.
12 Q. Let me try again.
13 Is there an impact in the vegetative
14 communities that you have observed that has resulted
15 in different vegetative communities in the areas that
16 are indicated to have extended hydroperiod on this
17 map, although as modified by you that area and the
18 areas which you would include in the dotted line area
19 indicated to be areas of marsh having a more typical
20 hydrologic regime, again, staying within the confines
21 of this figure and relative to each other in the
22 Refuge?
23 MS. PONZOLI: Mr. Gaines, I have to object
24 to form. I don't understand the question at
25 all.
652
1 Why don't we have it read back and I think
2 you might see --
3 MR. GAINES: I already see. Let me try it
4 again.
5 MS. PONZOLI: Some of the subject/verb
6 relationships are just --
7 BY MR. GAINES:
8 Q. We are all very clear that you think the
9 entire Refuge has a shorter hydroperiod than the
10 natural hydroperiod, so all of these questions are
11 just relative to each other within the confines of
12 the Refuge.
13 So with that qualification, I'm not going
14 to keep including it in my question. That will
15 simplify my question. Do you understand that much?
16 A. I understand that I don't agree with the
17 characterizations made in this figure, and I
18 understand I believe that water depth and periods of
19 inundation have an effect that manifests itself in
20 different community types being present and different
21 percentages in the various areas of the Refuge.
22 Q. And have you observed that effect occurring
23 in the southern portion of the Refuge in what we are
24 calling the area of extended hydroperiod on this
25 figure?
653
1 A. The most outstanding feature in my mind of
2 the southern part of the area is the abundance of
3 deep sloughs; however, there are portions of the
4 south end of the Refuge incorporated into the area
5 depicted on this figure as being areas of extended
6 hydroperiod which have characteristics that I also
7 associate with areas with reduced hydroperiod
8 relative to other portions of the Refuge.
9 Q. Which characteristics?
10 A. The presence of brushy species such as wax
11 myrtle, the presence of numerous fern tussocks in
12 some areas.
13 Q. Would those effects be occurring in areas
14 where you feel this figure is inaccurate in
15 portraying an extended hydroperiod in reference to
16 other parts of the Refuge?
17 A. Well, as I indicated, this figure is not
18 one which I think reflects with much accuracy what is
19 going on within the Refuge, and it's difficult for me
20 to respond to your questions in a general way
21 regarding this figure.
22 If I were to attempt to quantify the
23 relative hydroperiods in the various portions of the
24 Refuge in order to provide you with the kind of
25 information which you seem to be asking me to provide
654
1 you with, it would be an endeavor of several days.
2 I can discuss with you in general terms
3 like we have been doing what my opinions are relative
4 to the impacts on the vegetation communities as a
5 result of the depths and durations of flooding or
6 inundation of marsh.
7 Q. Let me ask you this. You said that you
8 would revise at least this figure to cut off this
9 extended hydroperiod area around the 10-D structure?
10 A. Yes.
11 Q. And you also said that you saw brushy
12 species such as wax myrtle in some of the areas
13 depicted on here as extended hydroperiod?
14 A. Yes.
15 Q. And my question is very simple. Did you
16 see that in the areas that you would eliminate as
17 extended hydroperiod areas on this map or did you see
18 it in the areas that are depicted, in the other areas
19 depicted as extended hydroperiod?
20 A. Well, there are other areas depicted as
21 having extended hydroperiod that I did not identify
22 where I have seen that, because those areas are not
23 of the areal extent of the area that I indicated I
24 would have not included, most specifically in the
25 southeast portion of the Refuge with relationship to
655
1 this figure. I have observed the types of vegetative
2 communities that I observed in the northern portion
3 of the Refuge.
4 Q. In those areas is the hydroperiod extended
5 relative to the northern part or is it, would it more
6 likely, more accurately be demarcated as overdrained,
7 using their nomenclature here?
8 MS. PONZOLI: Object to form. There are
9 some problems in your extensions.
10 MR. GAINES: I know. Let's try it this
11 way.
12 BY MR. GAINES:
13 Q. There is a certain portion of this map that
14 within the confines of this figure in the Refuge you
15 would feel would be appropriate to mark as areas of
16 extended hydroperiod relative to the rest of the
17 Refuge; is that correct?
18 MS. PONZOLI: I have trouble with that part
19 of your question. I got as far as that in your
20 question and had trouble with it.
21 Dr. Maffei needs to tell you whether he
22 does or not. Maybe I'm wrong.
23 MR. GAINES: I don't think he does, because
24 I'm getting this from him. We are just talking
25 about relative to each other, not in terms of
656
1 the historic hydroperiod.
2 MS. PONZOLI: If he has no problems with
3 that part of it, then he can certainly answer.
4 THE WITNESS: Let me clarify for you.
5 As I have testified earlier in this
6 deposition, probably on more than one occasion,
7 and as I also wrote in my declaration, the
8 Refuge is characterized by high spatial
9 diversity; that is, a high degree of
10 interspersion of the various community types
11 found within the Refuge.
12 It's my opinion that the overriding factor
13 which determines community types throughout the
14 Refuge is the depth of the water in that
15 location and the period of inundation at that
16 location.
17 When a figure such as we have before us in
18 Exhibit Number 6 is prepared, it ignores the
19 presence of the high degree of spatial
20 heterogeneity which is present. It ignores
21 local topographical variability. It attempts to
22 generalize in a very crude way somebody's
23 impressions of what is occurring.
24 So when you ask me to make modifications to
25 a figure such as this, you are asking me to
657
1 accept the preparer's inference that the high
2 degree of spatial diversity present within the
3 area is of no consequence, and I do not accept
4 that premise.
5 BY MR. GAINES:
6 Q. All right, let me ask you this. Do you
7 have a figure or map or are you aware of any one that
8 is more accurate than this one in attempting to
9 depict this type of relationship between the
10 different areas of the Refuge?
11 A. Well, it's my belief that various agencies
12 or individuals have models by which they can estimate
13 water levels in particular areas of the Refuge under
14 particular circumstances.
15 And while I am aware that those models
16 generate abundant output, the output can vary
17 depending on what the input variables are, but it's
18 my opinion that the output from those types of models
19 would be far more accurate in estimating what the
20 relative hydroperiods or representative depths of
21 water across the Refuge are.
22 Q. Which models come to mind? Are you talking
23 about the Lox Hydro Model?
24 A. I'm talking about the Lox Hydro Model and
25 grid cell models which I believe are available to the
658
1 Corps of Engineers, to the South Florida Water
2 Management District, and to anybody else that wishes
3 to have them. Those models on a cell-by-cell fashion --
4 and by cell, I refer to the kind of cells which we
5 have earlier referenced, although the size of the
6 particular cells may vary.
7 Those models make an effort to estimate in
8 a general way for a particular cell what the depth
9 and period of inundation would be on an average for
10 that entire cell and while still an average, and
11 therefore does not incorporate all the local
12 topographic variability and spatial heterogeneity
13 present, because the cells are smaller than what I
14 think the preparer of this map was basing the
15 description on. They represent a more accurate
16 reflection of relative water depths and periods of
17 inundation across the area.
18 Q. If you were able to restore what you
19 considered to be the natural hydroperiod over the
20 Refuge or in the Refuge, what impact, if any, would
21 you expect that to have on the vegetation and
22 wildlife there?
23 A. I am of the opinion that the area prior to
24 the initiation of drainage efforts in the 1880s was
25 characterized by lakes, ponds and sloughs with
659
1 abundant tree islands present.
2 Therefore, if I were able to in some way
3 declare that the area would have the hydroperiod and
4 depths of duration that were present prior to that
5 time, it's my opinion that given enough years of that
6 circumstance, it would return to its former state.
7 Q. If that was to occur, would that be
8 consistent with the goals and purposes of the Refuge?
9 A. In my opinion, it would be.
10 Q. When you mentioned the ecological problems,
11 the first one you mentioned was pollution through
12 surface discharges.
13 Are you including among that pollution
14 anything other than phosphorus nutrients? Well,
15 let's say phosphorus and take it from there.
16 A. I am including phosphorus in that answer.
17 Q. Any other items?
18 A. I am including in that answer everything
19 that enters the Refuge in those drainage waters that
20 would not have entered the area of the Refuge under
21 historic circumstances, but most specifically, I am
22 including those constituents of the water for which
23 the state has established standards.
24 Q. And you consider that problem to be on
25 equal footing with the melaleuca exotic species
660
1 problem?
2 A. In some ways I consider it to be on equal
3 footing. In some ways I consider it to be a more
4 serious threat.
5 Q. Are there any ways in which you consider
6 the melaleuca problem to be a more serious threat?
7 A. At the present time there are no ways that
8 I consider melaleuca invasion to be a more serious
9 threat to the resources of the Refuge than I consider
10 the problems of nutrient pollution.
11 Q. In what ways is nutrient pollution, as you
12 put it, a more serious threat than melaleuca to the
13 resources of the Refuge?
14 A. Well, to my knowledge at the current time,
15 there are no individuals, industries, agencies or
16 others who are attempting to prevent government
17 agencies which manage land from implementing plans
18 and efforts to kill melaleuca within the Refuge;
19 however, contrary to that, to my understanding, there
20 is a tremendous effort by individuals or entities to
21 prevent government agencies from implementing efforts
22 to reduce nutrient pollution to the Refuge.
23 Therefore, while they are both problems to
24 the ecosystem, the government agencies involved with
25 managing the area have implemented and are taking
661
1 steps to deal with the problems posed by the invasion
2 of melaleuca, and while the government agencies have
3 attempted to take steps and at least in one
4 circumstance have implemented a program to deal with
5 the problem of nutrient pollution, the major programs
6 in my opinion that would affect the problem of
7 nutrients entering the Refuge are being opposed in a
8 very substantial and at this point effective way.
9 Q. In your answer are you assuming that the
10 specific remedies called for in the SWIM Plan are the
11 appropriate remedies to address the nutrient issue?
12 A. In my answer I am incorporating the opinion
13 that the remedies to address the nutrient issue in
14 the SWIM Plan are appropriate remedies.
15 Q. Was there a consideration of alternatives
16 to the STAs at the time that the Settlement Agreement
17 was negotiated in terms of regional nutrient
18 reduction strategies?
19 A. As I recall, various alternatives were
20 discussed.
21 Q. What alternatives?
22 A. Well, I don't know that I can give you an
23 all-encompassing list.
24 Q. The ones that you are aware of.
25 A. One that stands stands out in my mind was a
662
1 regulatory scheme which was put forward by state
2 employees.
3 Q. Is that the BMP program you are referring
4 to?
5 A. No, sir, it's not.
6 Q. What phosphorus reduction strategy or
7 technology was to be employed in this proposed
8 regulatory scheme?
9 A. Well, as I recall, no particular phosphorus
10 reduction technology was identified, which is one of
11 the reasons why we did not believe it would achieve
12 the goals that were indicated by the individuals
13 employed by various state agencies.
14 Q. Do you recall what the basic framework was
15 of that proposed regulatory scheme?
16 A. Yes, I do recall the basic framework.
17 Q. What was it? And you don't need to give it
18 to me in great detail, but just to give me a sense of
19 what it was.
20 A. The basic framework was something along the
21 lines that in a theoretical mathematical sense, if
22 you have a normally distributed population of values,
23 that those values could be described by the mean of
24 those values.
25 If you required or if you changed the
663
1 values, the highest ten percent of the values such
2 that the highest ten percent of the values were equal
3 to the mean, you would reduce the mean.
4 Do you understand what I'm saying?
5 Q. So far.
6 A. Okay. So the regulatory scheme that was
7 proposed was that the concentrations in phosphorus
8 discharges, in discharging into a particular canal
9 within the EAA, would be quantified in terms of their
10 concentration, and that the highest ten percent, that
11 is, those discharges having the highest concentration
12 of phosphorus, would have a requirement imposed on
13 them such that they had to meet the mean of the
14 entire population of discharges entering that canal.
15 It was indicated to us that the state
16 people believed that that would result in substantial
17 reductions in phosphorus discharges to the
18 Everglades.
19 Q. Was there ever a parts per billion
20 discharge from the EAA number assigned to that
21 strategy that you are aware of?
22 A. There may have been. There probably was.
23 I don't recall it.
24 My memory is more in terms of load of
25 phosphorus than in terms of concentration.
664
1 Q. Do you recall how much of the load was said
2 to be subject to reduction as a result of that
3 proposal?
4 A. Well --
5 Q. I mean if you don't recall, that's fine.
6 A. I recall that my response to their load
7 reductions that they estimated would occur was that I
8 believed their estimate was ridiculous.
9 Q. Let me ask you this. Was there any
10 consideration of alternative technologies to the STAs
11 as opposed to regulatory schemes?
12 I mean was there an assumption that you
13 were going to have some regional treatment to reduce
14 phosphorus and that some other technology was
15 potentially considered as opposed to STAs?
16 A. Well, I have a little difficulty answering
17 whether those types of discussions took place during
18 a period of negotiations.
19 They probably did, but my difficulty is
20 that I believe I was first involved with discussions
21 of that nature with individuals from the Water
22 Management District, Department of Environmental
23 Regulation and other agencies on various alternative
24 nutrient reduction strategies as early as 1987 when
25 it was generally acknowledged even then that
665
1 phosphorus pollution in the Everglades was resulting
2 in eutrophication of the marshes.
3 And so while I'm aware that discussions of
4 alternatives took place and that it's likely because
5 of the nature of our negotiations that we were
6 discussing alternatives, other than those that I
7 indicated to you, I don't recall, for example, if we
8 discussed all the variety of alternatives that were
9 put forward, for example, by your clients early in
10 1992.
11 I doubt that we discussed the entire array
12 that has been put forward, but as I said, it's
13 probable we talked at least about some of those
14 alternatives.
15 Q. If I and Ms. Ponzoli and all the other
16 lawyers and all the litigation disappeared and you
17 had the two problems of pollution through the surface
18 discharges and melaleuca exotic species and there was
19 no litigation concerning either one of them, in that
20 instance would you consider those two problems to be
21 on equal footing?
22 A. In that instance if we had the ability, if
23 I had the ability to just do what I thought was
24 necessary to deal with both those problems --
25 Q. Yes.
666
1 A. No, I would not consider them to be on
2 equal footing.
3 Q. Which one would you consider to be the more
4 severe?
5 A. The problem of nutrient pollution.
6 Q. And what, in what respects do you consider
7 those problems to be on equal footing?
8 A. Do I consider them to be on equal footing?
9 Q. Yes.
10 A. They both pose a threat to the ecosystem.
11 Q. And why would you consider nutrient
12 pollution to be more of a threat than the melaleuca?
13 A. Because when we go out and remove melaleuca
14 from an area, the area is once again oligotrophic
15 Everglades; however, were I to be able to somehow
16 wave a magic wand such that all water entering the
17 Refuge had no more than six parts per billion
18 phosphorus in it today, the tremendous amounts of
19 phosphorus presently in the Refuge would remain there
20 and those portions of the area would remained
21 eutrophic.
22 Q. For how long?
23 A. Well, I really don't have much ability to
24 estimate how long the severely impacted portions of
25 the Refuge would remain eutrophic.
667
1 Q. So is it correct then that you would not
2 expect the SWIM Plan remedies to have the effect of
3 restoring areas that have already been impacted?
4 A. No, that is not correct.
5 Q. Okay. When would you expect those areas to
6 be restored if the SWIM Plan remedies were enacted?
7 A. Well, that would depend upon the degree to
8 which the area has been impacted.
9 Q. Is there an impacted area in the southern
10 portion of the Refuge?
11 A. There are in my opinion probably impacted
12 areas throughout most of the Refuge, as I indicated
13 earlier in this deposition.
14 Q. When you said that the areas would remain
15 eutrophic and the amounts of phosphorus would be
16 there for a long time, what kind of time frame are we
17 talking about, in just rough terms?
18 Are we talking about -- and consider the
19 most impacted areas that you can think of in the
20 Everglades -- are we talking about 10 years, 50
21 years, 100 years, two years?
22 Do you have an order of magnitude for me?
23 A. For the most severely impacted areas, my
24 guess is that it would be on the order of centuries.
25 Q. And where would you consider, generally
668
1 speaking, the most severely impacted areas to be
2 located?
3 A. Generally speaking, they are areas of the
4 Refuge that are occupied by dense stands of cattail.
5 Q. And I was also referring to the other
6 conservation areas, if you have any knowledge, what
7 would you consider the most severely impacted area to
8 be in the other portions of the system?
9 A. I'm afraid now you need to restate your
10 question for me relative to other parts of the
11 system, because I have been focused on the Refuge.
12 Q. Well, it's the same question about the most
13 severely impacted areas. If we enacted the SWIM Plan
14 remedies, when would you expect some restoration to
15 be occurring? And it's fine that you answered with
16 regard to the Refuge.
17 Would it be the same answer with regard to
18 the other areas where you see the dense stands of
19 cattails?
20 MS. PONZOLI: May I clarify the question?
21 I see a distinction between restoration
22 beginning to occur and restoration occurring.
23 And I guess I am assuming his former answer
24 was in terms of restoration, but restoration
25 occurring is a distinct answer.
669
1 MR. GAINES: Let's ask Dr. Maffei, when he
2 mentioned centuries, what was he referring to?
3 BY MR. GAINES:
4 Q. I think you said restoration, but what do
5 you mean by that, just so we are all on the same
6 definitional playing field here?
7 A. Okay, my opinion is that were the remedies
8 put forward in the SWIM Plan to be implemented, the
9 amount of phosphorus present in what I call impacted
10 areas would begin to change; that is, the phosphorus
11 levels, because no more would be being added to the
12 system, would either stabilize or over the period of
13 time which varies, depending on the level of impact
14 at the present time, the phosphorus would either be
15 sequestered in some sense in the soils so that it was
16 less available to the ecosystem or the phosphorus
17 would be redistributed in the ecosystem, so that
18 concentrations of phosphorus in any one location were
19 not as high as they were.
20 That process would begin in my opinion for
21 many locations throughout the ecosystem, so that in
22 terms of would restoration begin for most areas, I
23 believe it would begin as soon as reductions in
24 phosphorus loads entering the areas was effected.
25 In terms of the end result of the
670
1 restoration, that would be a return of the areas to
2 oligotrophic conditions and the rate at which areas
3 impacted returned to oligotrophic conditions, would
4 vary depending on the degree to which phosphorus
5 availability has altered that condition.
6 Q. Would restoring the historic Everglades
7 sheet flow across the Everglades, as you would use
8 that term, would that tend to restore the impacted
9 areas of the Everglades?
10 A. I believe sheet flow occurs across the
11 impacted areas of the Everglades today with the
12 exception that there are levees which from time to
13 time interrupt sheet flow from one area, from an area
14 upstream to an area downstream, but it's my opinion
15 that sheet flow occurs throughout virtually all areas
16 of the Everglades today.
17 Q. Are you familiar with the Science Subgroup
18 Report?
19 A. I am aware that it exists.
20 Q. Have you read it?
21 A. No, I have not read it.
22 Q. So I assume you had no participation in the
23 preparation of it?
24 A. I had no participation in the preparation
25 of it other than I was invited to a couple of the
671
1 meetings, which I did not attend for various reasons,
2 and had brief conversations with individuals who did
3 participate, but I do not know what effect, if any,
4 my conversations with those individuals may have had.
5 I have had conversations with individuals
6 who participated in the preparation of that report on
7 a relatively ongoing basis since I arrived in South
8 Florida.
9 Q. Are you aware of the basic conclusions of
10 the Science Subgroup Report?
11 A. I have some impressions of the conclusions
12 of the Science Subgroup Report based on newspaper
13 articles that I have read or various discussions that
14 I have heard either by representatives of the sugar
15 industry, representatives of various state agencies
16 or others.
17 I don't know to what extent those
18 impressions accurately reflect what's in the Science
19 Subgroup Report or to what extent those impressions
20 are colored by the --
21 Q. Well, I mean you haven't read it and it
22 doesn't make sense to go into what you have heard in
23 the newspaper. Let me ask you a more generalized
24 question.
25 What would you consider more beneficial to
672
1 the Everglades ecosystem, enacting the SWIM Plan
2 remedies or restoring the natural Everglades sheet
3 flow and hydroperiod that has been interrupted by the
4 compartmentalization of the system, the various dikes
5 and levees and canals and pump stations?
6 If you were able to do one of those two
7 things, which would be more beneficial in your
8 opinion to the Everglades ecosystem?
9 MS. PONZOLI: I'm going to object to the
10 form of the hypothetical, because I think it is
11 so crude in its formation. I don't mean to be
12 insulting, Mr. Gaines.
13 MR. GAINES: None taken.
14 MS. PONZOLI: So crude in its formation as
15 to be almost ludicrous.
16 MR. GAINES: Now it's taken.
17 MS. PONZOLI: I don't mean it that way, but
18 I mean are we to presume that your hypothetical
19 includes removal of all farming within the EAA?
20 Is that part of it? Because if you remove the
21 flood control project, I don't think you could
22 maintain farming in the EAA, and that would be a
23 necessary component of I assume your
24 hypothetical.
25 I just don't think the hypothetical can be
673
1 answered, quite obviously, and I have a
2 fundamental objection to a hypothetical that
3 includes such open-ended pieces that nobody
4 knows what anybody is assuming in the question
5 and the answer.
6 MR. GAINES: Okay, I think that's a fair
7 objection.
8 BY MR. GAINES:
9 Q. Do you have the same problems with the
10 question, Dr. Maffei?
11 A. I have those problems and other problems
12 with the question.
13 Q. All right. Well, let's not use that
14 question then, because everyone seems to have a
15 problem with it.
16 Do you believe that there is any
17 modification or alteration called for in the Central
18 and South Florida Flood Control Project structures,
19 canals, levees, dikes, in order to enhance or restore
20 the Everglades ecosystem? And I can ask it in a
21 simpler way if that would help.
22 If the nutrients could be removed from the
23 agricultural runoff, are you satisfied with the
24 plumbing system or would you like to see that
25 modified in some way?
674
1 A. Well, I think modifications to the manner
2 in which water is delivered to various portions of
3 the Everglades would be beneficial.
4 I also believe such modifications are
5 currently under way in portions of the system to
6 address that specific concern of not only myself, but
7 other individuals.
8 I also believe that were the nutrient
9 problem to be alleviated today, that other
10 modifications such as modifications that were
11 incorporated into the designs of the Stormwater
12 Treatment Areas as proposed in the SWIM Plan would be
13 beneficial for the ecosystem, but it's my belief that
14 some of those modifications would be very premature
15 if the phosphorus problem is not first dealt with.
16 Q. We had a discussion earlier about whether
17 the 50 parts per billion standard or limit was a
18 technology based number. We had a couple of
19 discussions about that, and I believe in our most
20 recent discussion you stated something along the
21 lines that if the STAs had been designed larger, it
22 could have been a lower number.
23 I'm assuming from that that if the STAs
24 were designed smaller, it could have been a higher
25 number; is that correct?
675
1 A. Well, with regard to the 50 parts per
2 billion, as I recall, the effort that was made was to
3 create STAs that would remove 70 percent
4 approximately of the load entering the STA, and then
5 the 50 part per billion number resulted from that
6 effort.
7 Q. Why was 70 percent of the load chosen?
8 MS. PONZOLI: Didn't we answer that?
9 BY MR. GAINES:
10 Q. No, I don't mean how do you get to 70
11 percent by doing your math and you arrive at 70
12 percent.
13 I mean why was that the goal as opposed to
14 60 percent or 80 percent?
15 A. As I recall, that was based on data
16 obtained from a large number of facilities known as
17 constructed wetlands, and that 70 percent removal of
18 the phosphorus load was commonly observed, but had
19 you not interrupted my previous answer, I would have
20 gone on to say that the size of the STAs would impact
21 the concentration in the outflow.
22 Q. And in fact, the STAs are assuming a 25
23 percent reduction through BMPs before the water
24 reaches them; is that correct?
25 A. That is correct. That was done in an
676
1 effort to place reliance on more than one technology.
2 Q. And notwithstanding the fact that the data
3 from a large number of constructed wetlands showed 70
4 percent, is it your testimony that a decision was
5 made to size the STAs in such a way that in
6 combination with the BMPs, the 70 percent goal would
7 be achieved rather than sizing them in a different
8 way, larger or smaller, to reach a higher or lower
9 goal?
10 MS. PONZOLI: Object to form.
11 THE WITNESS: I don't think your question
12 really reflects what I have testified to.
13 BY MR. GAINES:
14 Q. Well, let me make sure I understand then.
15 You stated that the 70 percent was commonly observed
16 in a large number of constructed wetlands, correct?
17 A. That's my recollection of the information
18 that was presented to us.
19 Q. And then you added, however, that the size
20 would impact the amount of phosphorus removed; is
21 that correct?
22 A. I have that opinion, yes.
23 Q. Is it your opinion that if a decision had
24 been made at the time that this program was designed,
25 that rather than 70 percent, 80 percent needed to be
677
1 removed, that the STAs could have been sized
2 accordingly?
3 A. Well, I guess some of my confusion over
4 this question is that the 70 percent load reduction
5 that I have been talking about is 70 percent of the
6 load that's left after the BMPs.
7 It's my understanding --
8 Q. That's fine. Just so the record is clear,
9 fine. The question is the same, what was it if you
10 had decided to remove 80 percent of the load after
11 the BMPs?
12 A. My understanding based on reviewing
13 documents, particularly one that comes to mind or
14 some that come to mind are documents generated by
15 Dr. Curtis Richardson, is that if the STAs were
16 larger, the concentration of phosphorus in the
17 effluent would be reduced.
18 Q. So then at the time that this program was
19 designed, is it correct that if the agreed goal was
20 40 parts per billion or 60 parts per billion, the
21 program could have been designed differently to
22 achieve either of those goals?
23 MS. PONZOLI: Object to form.
24 THE WITNESS: Well, I guess I disagree with
25 some of the assumptions in your question.
678
1 BY MR. GAINES:
2 Q. You guess you disagree?
3 A. I do disagree.
4 Q. Okay. What do you disagree with?
5 A. Well, I disagree with the agreed goals.
6 The goal that was stated during those discussions to
7 which you are referring was the goal of achieving
8 compliance with the state's Class III narrative
9 standard for phosphorus.
10 Q. Let me stop you, because I asked the
11 question wrong and I don't want to go off down the
12 wrong road.
13 The program as it's designed calls for some
14 interim targets and some long-term targets and
15 eventually to meet Class III water quality standards,
16 as I understand it.
17 At the interim level, the interim stage, as
18 currently designed and as it was agreed to in the
19 settlement, the program called for a certain amount
20 of load reduction that would have translated into a
21 concentration of 50 parts per billion; is that
22 correct?
23 A. As I recall, the agreement calls for
24 something on the order of an 80 percent reduction in
25 phosphorus load as the interim target.
679
1 Q. If an interim target of 90 percent or 70
2 percent had been chosen or agreed upon, could the
3 program have been designed differently in order to
4 achieve those alternatives?
5 MS. PONZOLI: Object to form.
6 THE WITNESS: Well, as I recall discussions
7 relating to that aspect of the program as it was
8 being formulated, there was a general level of
9 comfort that 70 percent of the load would be
10 retained in the STAs, and that came from
11 reviewing data of other constructed wetlands
12 around the world which are utilized in this
13 fashion, and that some of the individuals
14 participating in these discussions felt that
15 reliance on that dataset was most appropriate in
16 designing this technology, and that despite
17 opinions indicating that concentrations coming
18 out of marshes could be even lower, that the
19 design of this program at that particular point
20 in time should not be based on that, but that
21 there should be a period of time during which
22 alternative technologies could be looked at.
23 BY MR. GAINES:
24 Q. Okay. Let me ask you this. Do you know
25 the largest of the other constructed wetlands that
680
1 was looked at in acreage terms?
2 A. No, I don't recall that.
3 Q. Are you familiar with the chemical
4 treatment alternative that was the subject of one or
5 two SAGE presentations?
6 A. I am familiar with that.
7 I will need a break soon.
8 Q. Do you have opinions, expert opinions on
9 the chemical treatment alternative?
10 A. Well, aside from your characterization of
11 them as expert opinions --
12 Q. You are listed as an expert.
13 A. I have opinions on chemical treatment.
14 Q. Do you feel that that is a technology that
15 merits additional research and analysis to determine
16 if it is an appropriate strategy or an alternative
17 that should be looked at as opposed to STAs?
18 MS. PONZOLI: Object to form.
19 THE WITNESS: It's my opinion that chemical
20 treatment has been looked at as an alternative
21 to STAs, and it's my opinion that after looking
22 at that alternative as a means of reducing
23 phosphorus loads or the concentration of
24 phosphorus in the water, it does not present
25 itself as an alternative which would be superior
681
1 to STAs.
2 BY MR. GAINES:
3 Q. Why not? What about it would not be
4 superior to STAs?
5 A. Well, there are a number of areas in which
6 it would not in my opinion be superior to STAs.
7 I think the most important or among the
8 most important considerations would be the cost of
9 the facilities relative to STAs.
10 Q. What cost analysis are you relying upon for
11 that opinion?
12 A. Well, there have been a variety of cost
13 analyses done, and to some extent, I'm probably
14 relying on all of them, but I believe at one point
15 there was an effort to identify potential designs for
16 putting a chemical treatment facility --
17 Q. Wait a minute. Are you going to tell me
18 the cost analysis before you go into the specific
19 ones done by specific people?
20 A. I don't recall them all.
21 Q. Do you recall any?
22 A. Some consultants for the Water Management
23 District.
24 Q. Brown & Caldwell?
25 A. Brown & Caldwell did some. I think --
682
1 Q. Wait a minute, are you relying on Brown &
2 Caldwell's analysis?
3 A. To the extent that there is information
4 discussing chemical treatment, that information that
5 I find consistent with information obtained elsewhere
6 or my view of the world, if you will.
7 Q. You are relying on the parts of it that you
8 agree with and not on the parts that you disagree
9 with?
10 A. I'm relying on the parts that seem to be
11 consistent not only internally within the documents
12 but externally with other information which I have
13 seen.
14 If you choose to frame it in that way,
15 that's your characterization.
16 Q. Let me ask you this. Are you familiar
17 enough with Brown & Caldwell's chemical treatment
18 work to specify particular areas of it that you would
19 disagree with?
20 MS. PONZOLI: I don't believe Dr. Maffei
21 has been listed as an expert in this area, and I
22 think we are going far afield from what we have
23 listed him for, and I really -- you know, he
24 started this --
25 MR. GAINES: Suzan, that's fine. If you
683
1 are telling me this isn't one of his areas, I'll
2 leave it.
3 MS. PONZOLI: He said I have opinions, but
4 I'm not sure I'm calling mine expert opinions,
5 and you want to go and quiz him on Brown &
6 Caldwell, and I think that's a waste of time and
7 not what we have listed him for.
8 MR. GAINES: If you are not using him for
9 it, I don't need to question him on it. Thank
10 you for that. We'll go on to another subject
11 after a five-minute break.
12 (Thereupon, a recess was taken.)
13 BY MR. GAINES:
14 Q. Dr. Maffei, how were the locations of the
15 interior marsh stations chosen, to your knowledge?
16 A. I don't know.
17 Q. That was before your involvement with the
18 Refuge?
19 A. Yes.
20 Q. Yesterday -- well, whenever it was, we
21 discussed the sampling during the '78 to '83 baseline
22 period and the concept of using the bucket on the
23 rope from the helicopter, and you expressed the
24 opinion that use of that method would cause the
25 phosphorus concentrations to be higher, to be
684
1 recorded at a higher level than was actually the
2 case.
3 Why would that have been?
4 A. Well, I don't believe that is exactly the
5 way I characterized it.
6 Q. Okay.
7 A. I think I characterized it as that sampling
8 method would introduce a bias into the data. And I
9 further indicated the cause or the impact on the
10 sampling or the impacts of the sampling that would
11 result in the bias being introduced.
12 And I believe I indicated that the bias
13 could be introduced if the bucket disturbed sediment
14 when it was lowered into the water such that bottom
15 sediment ended up suspended in the water sample.
16 Q. And what would the impact on that potential
17 bias be if the samples were filtered after they were
18 taken and before they were analyzed?
19 A. Well, filtering the samples would create
20 another type of bias, and so now, depending on the
21 size of the filter and other handling, I don't know
22 what the combined impact would be.
23 Q. Do you know whether the samples were
24 filtered?
25 A. I don't recall what was done to the
685
1 samples, if they were filtered, and if they were
2 filtered, what size filter they might have been put
3 through. I don't know.
4 Q. Take a look at the annual report again,
5 please, Exhibit 4.
6 On page five there is a reference under the
7 Research and Investigations section to the Everglades
8 Nutrient Threshold Research.
9 Are you familiar with this research
10 program?
11 A. I am familiar with this.
12 Q. Is Dr. Ron Jones the primary investigator
13 in this program?
14 A. I believe Dr. Ron Jones is listed as the
15 primary investigator for this program.
16 Q. Is Dr. Jones the --
17 A. I would like to modify that. I think the
18 term is principal investigator.
19 Q. Okay, thank you.
20 Number one listed here is "determine
21 phosphorus loading from atmospheric deposition."
22 Is that determination being done with
23 reference or with usage of the four chemical,
24 rainfall chemical analyzers that we talked about
25 earlier?
686
1 A. Well, as we discussed earlier in this
2 deposition, that is not exactly the kind of
3 information we are getting from those collectors, so
4 I guess my answer to your question is no, it won't
5 really be possible to get the answer to that question
6 from those collectors.
7 Q. Is Dr. Jones or the FIU lab, are they the
8 ones doing the analysis on that data from those
9 collectors?
10 A. I don't know of anybody who has begun
11 analysis of the data from those collectors.
12 Q. What happens with the data? Is there any
13 involvement with FIU in that data?
14 A. FIU generates the data.
15 Q. They are the ones maintaining and reading
16 the data off of those collectors?
17 A. The collectors do not provide data.
18 Q. They don't?
19 A. The only data that is obtained at the
20 collectors is the amount of rainfall which has fallen
21 at that particular location during the interval in
22 which the contents of the buckets fell into the
23 buckets, and that data, that datum is recorded by
24 Refuge personnel.
25 Q. What about the analysis of the samples?
687
1 A. FIU is conducting the analysis of the
2 samples.
3 Q. Does the Refuge have its own lab?
4 A. The Refuge does have an area that is
5 technically a lab.
6 Q. Why are you qualifying it?
7 A. Well, the Refuge has an area, a room
8 commonly referred to as the kitchen, and the kitchen
9 has two sinks in it and a counter which runs at least
10 partway around three walls, and the color of the
11 countertop changes at one point from black to some
12 other color.
13 And the portion of the countertop which is
14 black contains a sink, and that is in there to be a
15 lab as opposed, in the broad sense of the word, as
16 opposed to a kitchen.
17 Q. I see.
18 A. Which is why I qualified the answer.
19 Q. Who is in charge of the lab?
20 Well, would it be correct to state that
21 there is -- can you describe for me the most
22 significant types of work that occur in that lab?
23 Give me the top two and then we'll see if
24 we want to go on to number three.
25 A. I'm not sure what you mean by significant.
688
1 Q. Significant to you.
2 A. Well, significant to me has a statistical
3 meaning. Various types of work that occur are the,
4 at the present time, the removal of samples from the
5 buckets and the placement of those samples in
6 containers appropriate for transfer to the facilities
7 at FIU.
8 Q. Who is involved with doing that?
9 A. Well, to a certain extent I am involved in
10 doing that.
11 Q. Do you physically do that?
12 A. No.
13 Q. Who physically does it?
14 A. Generally that is done by Su Jewell and/or
15 Fred Broerman. There may be on occasions -- no, I
16 think it would be limited to those two individuals.
17 Q. How will objective number one be
18 accomplished under this Everglades Nutrient Threshold
19 Research?
20 A. I am not certain at this point that
21 objective number one will be accomplished. I think
22 that it would require construction of towers.
23 It's my understanding that a tower such as
24 would be needed to get a better determination of that
25 than what one can get from the types of devices we
689
1 have installed will be constructed in the Everglades
2 Nutrient Removal area, and a rainfall collector at
3 the top of that tower could provide additional
4 information to address this question.
5 Also, I believe that a radio antenna will
6 be constructed in the headquarters area of the
7 Refuge, and I believe I had at least on one occasion
8 inquired into the possibility of that tower being
9 incorporated into the project. I think I got a
10 negative response.
11 So it may be that the tower constructed
12 within the ENR project would be the facility which we
13 would depend upon, although even that facility would
14 not necessarily give us an answer to that question,
15 which in my interpretation would really show the
16 amount of phosphorus loading to the Refuge from
17 atmospheric deposition.
18 Q. At the top of page six, the first sentence
19 states "Four wetfall/dryfall collectors were
20 installed in order to accomplish objective number
21 one."
22 I take it you disagree with that sentence?
23 MS. PONZOLI: Object to form.
24 THE WITNESS: As I recall, they were
25 installed in relationship to objective number
690
1 one.
2 BY MR. GAINES:
3 Q. Why is it that you feel a tower is required
4 or towers are required?
5 A. As we discussed a couple of days ago, you
6 and I, not all that falls from the air is phosphorus
7 that I would consider to be phosphorus loading to the
8 Refuge from atmospheric deposition.
9 Q. Are the towers intended to get above those
10 confounding types of aspects that you get down at the
11 ground level such as insects and bird droppings and
12 those kinds of things?
13 A. The towers are being designed specifically
14 for the study of mercury. That is what the towers
15 are intended to deal with.
16 However, the types of concerns we discussed
17 the other day for phosphorus would to a certain
18 extent be addressed by placing the collectors at some
19 height.
20 Q. How tall are the towers? How many towers
21 are you talking about?
22 A. Which question shall I answer?
23 Q. Both.
24 MS. PONZOLI: Why don't you put one to him
25 and then put the next?
691
1 MR. GAINES: Okay.
2 BY MR. GAINES:
3 Q. How tall are the towers?
4 A. I don't remember.
5 Q. How many towers?
6 A. To my belief, there would be a single tower
7 in the ENR facility; however, other similar towers I
8 believe are planned for construction in other parts
9 of South Florida.
10 Q. Are any planned for the Refuge?
11 A. I don't believe that any of those towers
12 are planned to be constructed within the boundaries
13 of the Refuge.
14 Q. When will these towers be constructed?
15 A. I don't know.
16 Q. Do you know how many are intended?
17 A. It seems to me that the individuals
18 participating in that project --
19 Q. Whose names are? Who would be the primary
20 person that has the best knowledge of this that you
21 are aware of?
22 A. Well, I don't know who the primary person
23 is.
24 If I wanted to know the answer to this
25 question, I would probably contact persons at EPA,
692
1 although I don't know that I would know the primary
2 person.
3 I might contact persons with the Department
4 of Environmental Protection.
5 I might contact Curtis Pollman, for
6 example, whose name I recall as being one who is
7 involved in that project.
8 Q. Do you know the name of this project? Does
9 it have a name that you would use to refer to it?
10 A. Well, in a general way I would refer to it
11 as mercury studies, but I don't recall if it has a
12 particular name. I think it is a study that is being
13 sponsored in part by state agencies, in part by
14 federal agencies, and in part by the -- I'm trying to
15 remember -- the Electric Power Research Institute. I
16 think that's it.
17 Q. Okay. Let me ask you with regard to the 14
18 marsh stations that are to be monitored in connection
19 with task number three, has that monitoring commenced
20 at this point?
21 A. Well, the monitoring described for task
22 number three in my opinion has not commenced with
23 regard to the reference to insuring compliance with
24 the terms on Settlement Agreement, because that
25 compliance test is not scheduled to begin according
693
1 to the Settlement Agreement until I believe mid 1997.
2 Q. Is there some type of systematic monitoring
3 of the 14 marsh stations ongoing?
4 A. Yes.
5 Q. When did that commence?
6 A. That commenced when the entry and access
7 program discussed yesterday I believe by you and I
8 commenced.
9 Q. Would that be approximately December of
10 1992?
11 A. I believe that is approximately when it
12 commenced.
13 Q. And has FIU been doing that monitoring?
14 A. FIU has some involvement in that program.
15 I don't know that I would characterize their
16 involvement as doing the monitoring.
17 Q. Who is doing it?
18 A. I'm not sure what you mean by doing the
19 monitoring.
20 Q. Tell me who is involved with that program
21 other than the people from FIU.
22 How is that program being carried out?
23 A. Well, for the period roughly from December
24 of 1992 up to I believe November of 1993, the program
25 was carried out by consultants for your firm arriving
694
1 at the Refuge with a helicopter, a member of the
2 Refuge staff, in some cases myself, boarding the
3 helicopter, and then the helicopter visiting these 14
4 stations, as well as a couple of other locations
5 within the Refuge to obtain water samples.
6 Q. And what about since that time?
7 A. Since that time, the program has been
8 carried out by the arrival at the Refuge of a
9 helicopter under contract to the South Florida Water
10 Management District and personnel from the Refuge
11 boarding the helicopter and going to the 14 sites.
12 Q. And who is analyzing the water samples, the
13 ones since November of '93?
14 A. Those water samples are analyzed by the
15 South Florida Water Management District and by
16 Florida International University.
17 Q. And do you have an awareness as to what
18 that data during that time period is?
19 Have you seen it?
20 A. I have seen the data and I have awareness
21 in a general way of what the data shows. And I have
22 seen data presentations of that data prepared by
23 consultants for your firm.
24 Q. Are the interim standards or limits being
25 met at this point?
695
1 A. I have not seen an analysis of that for
2 several months.
3 Q. As of the last analysis that you saw, were
4 they being met?
5 A. My recollection is that the analysis of
6 some of the data sets would have indicated
7 exceedences of the marsh levels.
8 Q. Was it a case of some months they were
9 being met, other months they weren't being met?
10 A. I believe that is what the data showed.
11 Q. On page six here there is reference to,
12 below the picture of Su Jewell, there is a reference
13 there in that paragraph, "Raw data has been provided
14 to the Refuge by FIU, but analysis of the data was
15 not completed by the end of the year."
16 Is this the data that we have just been
17 discussing, this 14 marsh stations?
18 Do you see the reference?
19 A. Yes, I see it.
20 I believe that is the data that's being
21 referenced.
22 Q. What is the status of the Dosing study that
23 is referenced in the following paragraph?
24 A. The status of that study is that a research
25 protocol has not yet been prepared or completed.
696
1 Q. Did Dr. Jones submit a proposal to do a
2 Dosing study in the Refuge?
3 MS. PONZOLI: Object to form. You mean to
4 the Refuge?
5 MR. GAINES: To anyone.
6 BY MR. GAINES:
7 Q. Has he provided a proposal to the Refuge to
8 do a Dosing study in the Refuge?
9 A. I believe he did provide something along
10 those lines to the Refuge.
11 Q. And what occurred as a result? What
12 happened with that proposal?
13 A. Well, we have a contract with FIU to
14 conduct such a study, and I don't recall the role
15 that that proposal played in the development of that
16 contract.
17 Q. When was the contract done? Was that the
18 1992 contract?
19 A. I think that contract was executed in 1992.
20 Q. So what is the current horizon for getting
21 this Dosing study going?
22 What is the next chain of events that you
23 would expect to happen?
24 A. Well, we have recently been informed that a
25 source of funding that we believe we were able to
697
1 rely upon has been withdrawn.
2 Q. What was that?
3 A. Well, the South Florida Water Management
4 District or I should say representatives of the South
5 Florida Water Management District had indicated to us
6 a willingness to share in funding of this project.
7 And in fact, I believe they indicated to us that
8 funds for this project were indeed in their budget.
9 And recently we have been notified that as
10 a policy matter, the Water Management District does
11 not intends to provide those funds.
12 So at this point our plan is to make an
13 effort to move forward with the development of that
14 research protocol; upon completion of the development
15 of that protocol, determine with some specificity
16 what the cost of construction of the facilities to
17 conduct the study would be at any one location; with
18 that knowledge, determine based on the available
19 funding how many such facilities we would be able to
20 construct; construct those facilities, while at the
21 same time pursuing additional funding from other
22 sources.
23 Q. And is it still intended that FIU is to do
24 this study?
25 A. It is intended that this study will be
698
1 coordinated out of the National Biological Survey
2 unit located at FIU.
3 Q. And will Dr. Jones be the principal
4 investigator?
5 A. At this point I would say Dr. Jones would
6 be listed as the principal investigator or one of
7 several principal investigators.
8 Q. Did you review or become aware of the
9 Dosing study proposal that Dr. Jones submitted to the
10 Water Management District in Tony Federico's
11 memorandum with regard to that proposal?
12 A. I have seen --
13 MS. PONZOLI: I guess I have an objection
14 that I believe that is a pre-proposal, and I
15 would prefer your questions --
16 MR. GAINES: All right, pre-proposal.
17 THE WITNESS: Well, I would not have
18 modified the question with that.
19 I was going to say I have seen the proposal
20 which Mr. Federico suggested was a proposal for
21 that research.
22 I would not characterize that proposal as a
23 proposal for the research. It was in my
24 opinion, as Ms. Ponzoli stated, a pre-proposal
25 and in fact it was a document which was
699
1 requested as a pre-proposal by Mr. Federico, to
2 my recollection.
3 BY MR. GAINES:
4 Q. Did you disagree with the contents of
5 Mr. Federico's memorandum concerning that
6 pre-proposal?
7 A. To a large extent I did disagree with the
8 contents of Mr. Federico's memo and the
9 characterizations made with regard to the document.
10 Q. Did you disagree with the characterizations
11 of Dr. Jones' expertise, background and experience in
12 that memo?
13 MS. PONZOLI: By Mr. Federico?
14 MR. GAINES: Yes, contained in that memo,
15 yes, ma'am.
16 THE WITNESS: I don't recall at this point
17 what the specific references you are inquiring
18 about were. I do not have doubts about
19 Dr. Jones' capabilities.
20 BY MR. GAINES:
21 Q. Do you have any awareness as to whether
22 that, the circumstances surrounding Tony Federico's
23 memo, was there any connection between that and the
24 District's policy decision not to provide the funding
25 for the Dosing study in the Refuge?
700
1 A. Any connection?
2 Q. What was your understanding of the policy
3 decision as to why the District didn't go through
4 with the funding?
5 A. Well, my understanding is the policy
6 decision is from a letter I recently received from
7 Mr. Creel -- in fact, I believe it was signed by him --
8 informing me that the District's position at this
9 point in time is that the District does not intend to
10 provide funding for that particular study.
11 To the extent that Mr. Federico wrote a
12 memo regarding that type of study, in fact, may have
13 written more than one, and Mr. Federico is involved
14 with grants of this nature, I suppose he was involved
15 in some way with that decision.
16 Q. Did Mr. Creel's letter provide you with any
17 basis for the decision not to provide the funding?
18 A. I believe he did provide in his letter some
19 information with that.
20 Q. What was the basic reasons that he gave?
21 A. I don't recall everything in that letter,
22 but what stands out in my mind was his indication in
23 the letter that the District, in conjunction with the
24 Department of Environmental Protection, is funding
25 and attempting to conduct three projects identified
701
1 in the Nutrient Threshold study plan, and that at
2 this point in time they did not believe that it was
3 necessary for them to participate in the fourth
4 component or the fourth type of study identified in
5 the Nutrient Threshold study plan.
6 Q. Are the listing of research projects in
7 these annual reports that the Refuge produces
8 intended to be comprehensive lists of the research
9 that's ongoing in the Refuge each year?
10 A. I would not characterize them that way.
11 The annual narrative reports are intended
12 to provide individuals in the Fish & Wildlife Service
13 and other parts of the country with general
14 information about the Refuge.
15 Q. Does there exist a comprehensive listing of
16 the various research efforts ongoing in the Refuge?
17 A. I'm aware of no document that is intended
18 to be a comprehensive list of all research going on
19 within the Refuge.
20 Q. Would you have the best knowledge of the
21 research that's ongoing in the Refuge?
22 A. In terms of what projects are occurring?
23 Q. Yes, sir.
24 A. Well, I believe that I would have knowledge
25 of that. I don't know if I would have the best
702
1 knowledge.
2 Of course, for any particular piece of work
3 the individuals directly involved would have more
4 knowledge of it than I.
5 Q. Yes, sir. Let me ask you this. As of now
6 in the Refuge, other than the FIU contract, what
7 other research projects are you aware of that are
8 ongoing?
9 A. When you say research project, what are you
10 encompassing?
11 Q. What does that term mean to you, anything?
12 A. Well, I think, for example, that certain
13 engineering activities are going on with regard to
14 perhaps the ENR project or at various times various
15 other types of projects, and I generally would not
16 include that as a research project.
17 Q. All right.
18 A. I'm just asking if that's something you are
19 interested in.
20 Q. You mean engineering modifications to the
21 Refuge to accommodate the ENR project?
22 A. That might be an example. I think, for
23 example, that at one time individuals hired by your
24 firm or by the industry interests have been on the
25 Refuge, for example, surveying levees.
703
1 Q. I'm more asking about projects, what I
2 would consider more formal research efforts such as
3 the ones listed in the annual report here.
4 A. Okay. In that case, aside from the entry
5 and access program, which is my understanding the
6 consultants for your firm have decided is not
7 complete yet, I believe there is some type of project
8 being conducted by the Sugar Growers Cooperative, but
9 I do not know the details of that other than they
10 have I believe requested permission to enter the
11 Refuge and go to certain specific locations for some
12 purpose which I don't recall at this point in time.
13 Q. Any others that you are aware of?
14 A. That are occurring today?
15 Q. Yes, sir.
16 A. I believe there was some work done --
17 excuse me, I forgot if you are referring to anything
18 not listed in here. Was that your question?
19 Q. Well, I was asking you what's ongoing
20 today.
21 If something from 1993 has occurred that's
22 not listed in here, I'd like you to tell me that too.
23 This is the 1993 report. We are sitting here in
24 1994, so I asked you what was going on now, but if
25 the 1993 report omitted research that had been done
704
1 in 1993, I would like you to tell me that.
2 A. Okay. The rainfall -- excuse me, the
3 wetfall/dryfall collectors are still being visited
4 generally on a weekly basis, but there are weeks when
5 on occasion we do not visit them.
6 The 14 stations are being visited I believe
7 on a monthly basis, although there may be occasions
8 when they have been visited twice a month. And
9 because of difficulties with a particular helicopter,
10 we may have even missed a month. I don't recall with
11 specificity.
12 Q. Okay.
13 A. There has been additional visits to the
14 ibis rookery this year.
15 We are conducting and have been conducting
16 the type of routine waterfowl monitoring and wading
17 bird monitoring that is indicated in here I believe
18 occurs on the Refuge.
19 Q. Okay.
20 A. We continue to monitor water levels in our
21 managed compartments, as well as within the
22 conservation area.
23 I don't know if you would consider those to
24 be research programs or routine monitoring, but those
25 activities are being done.
705
1 Q. Okay.
2 A. There is I suppose what could be considered
3 a research program with regard to the control of
4 melaleuca occurring, and that did occur in 1993 as
5 well. It's not listed here as one of these research
6 programs. It may be listed under the section titled
7 Control of Exotic Plants or Vegetation Control, or
8 however that section is entitled.
9 Q. Is there any follow-up research being done
10 in connection with Work Order 32, or is that
11 finalized now, Work Order 32?
12 A. Well, Work Order 32 is completed. There is
13 no work being conducted under Work Order 32 any
14 longer.
15 Q. When that was completed, did you or the
16 Refuge receive copies of the raw data that those
17 researchers collected?
18 MS. PONZOLI: That is the topic of enormous
19 dispute and debate between us. We gave you
20 everything we had. You always maintained it
21 wasn't sufficient raw data.
22 MR. GAINES: Wait a minute.
23 MS. PONZOLI: Well, wait, Mr. Gaines, I
24 mean I'm really offended, because you have gone
25 to the University of Florida and you have sat
706
1 literally with your consultants at our
2 researchers' work stations and computers pulling
3 the raw data out in the form that you want. We
4 always gave you everything we had.
5 MR. GAINES: Well, I'm very confused.
6 MS. PONZOLI: Equivalent of raw data. You
7 said it wasn't raw data, so you went to the
8 University of Florida, took the raw data off the
9 machines, not once, probably five times.
10 And to have to sit here on the fifth day of
11 the deposition and listen to questions on this
12 is, frankly, offensive.
13 MR. GAINES: I'm confused for three
14 reasons. All I said was, number one, did they
15 give you the raw data. I don't know if that was
16 even an objection.
17 Number two, you are now calling them our
18 researchers, unquote, and I thought the position
19 in the case was they weren't your researchers,
20 you didn't have control over them and they
21 weren't your data.
22 MS. PONZOLI: Wait, we never said that
23 Kitchens wasn't a researcher, no, no, no. We
24 said the University of Florida had control over
25 that raw data that you said you had to have in
707
1 that form which existed there, which you must
2 have now, because you sat at his machines.
3 MR. GAINES: Do you have a legal objection
4 to the question about did they give you the raw
5 data? I don't understand.
6 MS. PONZOLI: I have an ethical objection
7 to your continuing to pursue a topic that has
8 been dead long ago and wasting my time and this
9 witness' time the fifth day in this deposition.
10 We are listening to the same question asked
11 again and again and again, and now we are going
12 to go back into discovery requests that must go
13 back five or six years.
14 BY MR. GAINES:
15 Q. Would you answer the question, please, sir?
16 A. I believe that I received raw data for some
17 aspects of that study and did not receive raw data
18 for other aspects of that study.
19 Q. Did you ask for it?
20 A. Yes, I did.
21 Q. Do you know why you didn't receive it?
22 A. I was told that there was concern over the
23 use of that data. Specifically the concern expressed
24 to me was one of pre-publication of the data as has
25 occurred at least it was the opinion of the
708
1 individual talking to me that such pre-publication
2 had occurred, with raw data generated in the
3 Everglades.
4 And therefore, he was not interested in
5 providing me with the data, particularly since it was
6 his understanding that if I had it, it would become
7 public data.
8 Q. Is that Mr. Jelks?
9 A. No, sir.
10 Q. Who was that?
11 A. My recollection of that particular
12 conversation was that I called Dr. John Richardson.
13 Q. Okay.
14 A. The particular raw data which I believe I
15 obtained that was used in that study include the
16 satellite image data that was obtained by the
17 university under that contract and the water quality
18 data sets which were obtained from the South Florida
19 Water Management District.
20 Q. What about the photography that was used
21 for the synthesis report, did you obtain that?
22 A. Which photography are you referring to?
23 Q. Did you obtain any photography in
24 connection with the synthesis report?
25 A. We may have obtained or have been given
709
1 some pictures that were taken by individuals who
2 participated in that research. I don't know to what
3 extent that might have been used in the synthesis
4 report.
5 Q. When you say you may have, do you recall
6 one way or the other?
7 A. Well, I recall that Mr. Jelks, for example,
8 gave me pictures of woodstork nests that he took
9 while he was on the Refuge.
10 Mr. Jelks gave me, I think he took pictures
11 of a duck which was harvested on or near the Refuge,
12 which was an unusual visitor to the area. And he
13 probably gave me other photographs which he thought
14 would be of interest to me.
15 I recall, for example, seeing a photograph
16 that I believe Mr. Jelks gave me just the other day
17 when I was in my office of himself holding, I think
18 it was one of those ducks.
19 So researchers involved in that study did
20 give me photographs. I don't know to what extent
21 those photographs were referenced in Work Order 32.
22 Q. Were you ever provided with the data that
23 Dr. Richardson had said he wished not to have it be
24 pre-published?
25 A. I don't believe I was ever provided with
710
1 that data other than Mr. Richardson or Dr. Richardson
2 told me something to the effect that the data is
3 incorporated in the reports, and he believes that's
4 an appropriate way or at least at the time he
5 believed that was an appropriate way by which the
6 data was transmitted.
7 But in terms of getting all the raw data
8 that was utilized during the preparation of the
9 report, it's my opinion that I never received all the
10 raw data.
11 Q. Are you familiar with the split samplings
12 that occurred or were done in connection with the
13 entry and access?
14 A. I believe I am aware that a number of
15 samples were obtained and in some cases they may be
16 referred to as split samples. I don't know what
17 familiarity beyond that I would have.
18 Q. Are there samples that Loxahatchee Refuge
19 personnel took as split samples in connection with
20 the entry and access?
21 What I want to ask is are there chain of
22 custody documents with regard to those samples that
23 you are aware of?
24 A. I'm not aware of chain of custody documents
25 with regard to the samples that are collected by
711
1 Refuge staff, although such documents may be being
2 created, but I am not aware of them.
3 Q. So if there were chain of custody documents
4 generated during the entry and access for Loxahatchee
5 personnel with regard to the split samples, you are
6 not aware of them?
7 A. I just answered I am not aware of chain of
8 custody documents with regard to any samples, split
9 or otherwise.
10 MS. PONZOLI: Are you using this term split
11 samples in a very generic way, Mr. Gaines, or in
12 a very specific way?
13 MR. GAINES: I don't understand your
14 question.
15 MS. PONZOLI: Well, I don't understand your
16 question, because I understand split samples to
17 have a very definite meaning, and I think you
18 are using it in a very loose generic way. At
19 least the way it's coming out in your questions,
20 it would appear to be that.
21 BY MR. GAINES:
22 Q. Are there documents which you are aware of
23 that relate the sample bottle numbers to the sample
24 stations for the November '93 to March 1994 sampling
25 of the Refuge?
712
1 A. I think something of that nature does
2 exist.
3 Q. Were those documents among the documents
4 that you have produced?
5 A. I can't say with specificity that they
6 were, but I requested that the documents regarding
7 that program be provided and, as I indicated earlier
8 in this deposition, my assumption was that the
9 documents that were gathered included all the
10 documents that I requested, all the documents
11 pertaining to the categories that I requested.
12 Q. And that would have been among them, as far
13 as your understanding?
14 A. Yes, sir. I did request that any documents
15 that related to the sampling of water at the 14
16 stations be gathered for me so that I could provide
17 them to you, or I should say so that I could provide
18 them to the US Attorney's Office, so that they could
19 provide them to you if appropriate.
20 Q. Is the Barry Stieglitz as referred to on
21 page nine of the annual report any relation to the
22 Stieglitz who first reported the cattails in 1962?
23 A. Well, I don't know that the Stieglitz
24 that's referred to in the prior exhibit first
25 reported the cattails.
713
1 Q. Well, that Stieglitz?
2 A. But the individuals are related.
3 Q. What's the relation here?
4 A. Mr. Barry Stieglitz is the son of the
5 Stieglitz which was referenced in an earlier
6 document.
7 Q. You believe someone prior to the senior
8 Stieglitz reported the cattails, or you are just not
9 sure?
10 A. I believe that there were vegetation
11 transects conducted on the Refuge prior to that 1964
12 reference which indicated a low occurrence of cattail
13 on the Refuge.
14 Q. On page 18 there is a claim here that you
15 attended a course on pesticides.
16 What did that course basically entail?
17 MS. PONZOLI: Object to form.
18 MR. GAINES: What's the objection?
19 MS. PONZOLI: A claim in that's a
20 pejorative attached to it.
21 MR. GAINES: Okay.
22 THE WITNESS: I did attend a basic training
23 course in Corvallis, Oregon, on the dates
24 referenced with regard to pesticide, and that
25 course entailed the participants receiving
714
1 information with regard to the Federal
2 Insecticide and Rodenticide Act -- that may not
3 be the exact title of the act -- with regard to
4 law enforcement activities which service
5 personnel had been involved in.
6 BY MR. GAINES:
7 Q. Let me just, was there a specific reference
8 to Everglades issues in this course or just a general
9 pesticides type course?
10 A. The course was designed as a general
11 training course for Fish & Wildlife Service personnel
12 in the methods of investigating potential pesticide
13 and contaminant problems and hearing about the types
14 of activities service personnel were involved in in
15 other locations, and it was --
16 Q. Okay, that's fine.
17 Let me ask you to take a look at page 19.
18 I guess the fourth line down, there is a statement
19 "While agricultural industry officials claim that on
20 farm best management practices are being implemented
21 to release phosphorus discharges, there will probably
22 not be any real improvement until 1994, when the ENR
23 Project, a 3,700-acre constructed wetlands, begins
24 filtering drainage water."
25 First of all, with regard to this
715
1 pejorative word "claim" in this sentence, why is it
2 stated that agricultural industry officials claim
3 that on farm best management practices are being
4 implemented? Is there a doubt as to that fact?
5 MS. PONZOLI: Similar to your question
6 prior to Dr. Maffei, claim that he had attended
7 a particular --
8 MR. GAINES: Yes, I was just trying to
9 demonstrate that that is in fact a pejorative
10 term.
11 MS. PONZOLI: We appreciate the
12 demonstration. We have had many of them in this
13 case.
14 Do you remember the question?
15 THE WITNESS: Yes, I remember the question.
16 I am comfortable with the word "claim" as a
17 pejorative in that statement.
18 BY MR. GAINES:
19 Q. Why is that?
20 A. Because representatives of the Florida
21 sugarcane industry -- or excuse me, the agricultural
22 industry have indeed claimed that there have been
23 major reductions of phosphorus entering the
24 Everglades as a result of the implementation of best
25 management practices in the EAA.
716
1 Q. The sentence says the claim is that the
2 best management practices are being implemented to
3 reduce phosphorus discharges.
4 A. Well, I believe to a large extent best
5 management practices are being implemented for public
6 relations purposes and in response to regulatory
7 requirements.
8 Q. You don't believe that they will have their
9 intended effect?
10 A. I believe that best management practices,
11 if implemented in a conscientious and comprehensive
12 manner, can have the intended effect.
13 Q. Do you have doubts as to whether they are
14 being implemented in their intended manner, in a
15 conscientious manner?
16 A. I do have some doubts.
17 Q. What are those doubts based upon?
18 A. Discussion had with individuals who work
19 for the agricultural industry.
20 Q. Who?
21 A. As well as discussions with some others in
22 a general way.
23 Q. Who were the individuals