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? 24 A. Most specifically -- 25 MS. PONZOLI: If these are in the course of 717 1 mediation, Dr. Maffei, you are not compelled to 2 answer. 3 MR. GAINES: Are you instructing him not to 4 answer? 5 THE WITNESS: I didn't take that as an 6 instruction be not to answer. I am now thinking 7 about my answer. 8 MR. GAINES: In the absence of an 9 instruction not to answer, you are compelled to 10 answer. 11 MS. PONZOLI: Well, I think he needs to 12 indicate first whether these are part of 13 mediation talks, Mr. Gaines, and if they are 14 not, then I'm not instructing him. 15 If they are part of mediation talks, then I 16 want to think about the instruction. 17 MR. GAINES: Okay. By the way, while he is 18 thinking about that, have you reached a closure 19 on whether we could have the name of the 20 attorney who instructed him with regard to the 21 inflow standards or are you still talking to 22 people? 23 MS. PONZOLI: No, I think it's the 24 Department's position that we are not going to 25 reveal that name, and the instruction will 718 1 stand. 2 MR. GAINES: Okay. 3 (Thereupon, the witness conferred 4 with counsel.) 5 THE WITNESS: I recall a conversation that 6 I had with a Mr. Pete Rosendahl, Dr. Pete 7 Rosendahl, and the general character of the 8 conversation was I asked him his opinion of BMPs 9 and their implementation, and his general 10 response was he did not think that BMPs to 11 control phosphorus were going to be implemented 12 industry wide within the EAA. 13 I would have to say that that was 14 confirmation of an opinion that I had formed 15 prior to that conversation over a number of 16 months, maybe even spanning years, with regard 17 to this issue based not only on my presence at 18 SAGE meetings, but conversations with many other 19 people, none of which stands out the way that 20 that particular discussion stood out. 21 BY MR. GAINES: 22 Q. And your use of the word "claim" here -- is 23 this your sentence, by the way? 24 A. I did not write this, I don't believe. I 25 believe it was written by someone else. 719 1 I probably reviewed this and did not make 2 note of that word one way or the other. I suppose 3 it's even possible that I did write some portions of 4 that. 5 Q. So we are clear, to the extent that the 6 word "claim" there has a pejorative connotation to 7 it, you would agree with that and leave it there for 8 that purpose; is that correct? 9 MS. PONZOLI: I think it's been asked and 10 answered. 11 THE WITNESS: I believe I just stated my 12 opinion that I don't believe BMPs will be 13 implemented EAA wide with the objective of 14 reducing phosphorus discharges. 15 BY MR. GAINES: 16 Q. And do you have any opinions about what the 17 impacts would be if they were in fact implemented 18 industry wide? 19 A. If BMPs were in fact implemented industry 20 wide, and if they were operated in a conscientious 21 manner, I believe they would have the effect of 22 reducing phosphorus discharges from the EAA. 23 Q. By what percentage? 24 A. Well, based on discussions that I 25 participated in with a variety of individuals 720 1 knowledgeable about this topic, the estimate that a 2 25 percent reduction would be achieved is a 3 reasonable estimate, in my opinion. 4 Q. Is this an area where you would be 5 intending to offer testimony at trial? 6 MS. PONZOLI: I don't think he is listed 7 for BMPs. 8 BY MR. GAINES: 9 Q. Let me ask you about the second half of the 10 sentence, "there will probably not be any real 11 improvement until 1994, when the ENR project, a 12 3,700-acre constructed wetlands, begins filtering 13 drainage water," do you expect to see a real 14 improvement in 1994 in the character of quality of 15 the drainage or the inflow water as a result of the 16 ENR project? 17 A. I expect to see improvement as a result of 18 the ENR project. 19 Q. Immediately? 20 A. I expect that the quality of the water 21 being discharged from the ENR Project will be 22 lower -- excuse me, will have -- it's always 23 confusing when you are talking about whether the 24 quality is higher or lower, so I'll go back to 25 quantification. 721 1 I believe that there will be less 2 phosphorus, that the water being discharged from the 3 ENR Project will have lower phosphorus concentrations 4 than the water being discharged from the S5A pump. 5 If that's what you mean by immediately, the 6 answer is yes. 7 Q. Your understanding is that this water 8 quality benefit would occur as soon as the ENR 9 Project is permitted to begin discharging? 10 MS. PONZOLI: You mean some benefits? 11 MR. GAINES: Yes. 12 THE WITNESS: I believe the answer is yes. 13 MR. GAINES: Let's take a break. 14 (Thereupon, a luncheon recess was taken.) 15 BY MR. GAINES: 16 Q. Dr. Maffei, in your conversation with 17 Dr. Rosendahl that you mentioned when he said that 18 the entire industry would not implement BMPs, was he 19 referring to Flo Sun, to your knowledge? 20 A. Well, I think his, I think the reference 21 was that they would not implement BMPs for the 22 control of phosphorus specifically. He was at the 23 time and still is I believe employed by Flo Sun. 24 To a certain extent I guess his comments 25 were aimed particularly at Flo Sun, but I think that 722 1 he made some generalities too with regard to that. 2 Q. And when you put the qualifier for the 3 control of phosphorus on there, is that referring 4 back to what you had said previously about it was 5 public relations purposes? Was that it? 6 A. No, that's not why I would put that 7 qualifier on there. 8 Q. Why would you? 9 A. One of the BMPs which federal employees had 10 been suggesting to farmers in the EAA even prior I 11 think to my arrival in South Florida was water 12 management BMPs, and while I believe at least one 13 farm owned by an individual had employed or attempted 14 to employ some of the practices which were considered 15 BMPs with regard to water management on plantations 16 within the Everglades Agricultural Area, the vast 17 majority of the operators of those plantations had 18 chosen not to implement those types of BMPs. 19 Then during the drought that commenced in 20 September of 1988 and lasted until approximately 21 January of 1991, it's my opinion that operators of 22 those plantations learned that the water management 23 practices could be modified in many ways consistent 24 with the types of suggestions made by federal 25 employees with regard to pump practices without 723 1 having an impact on the economic return from those 2 facilities. 3 So I think to a large extent BMPs directed 4 at pumping practices which in my opinion can result 5 in reduced phosphorus discharges will be implemented 6 on a lot of the facilities in the Everglades 7 Agricultural Area. 8 Q. Did Dr. Rosendahl express any other 9 opinions about industry practices to you? 10 A. I believe the reference that I made to some 11 of the BMPs being installed for public relations 12 purposes have been referenced by Dr. Rosendahl. 13 Q. He said that, that they were being 14 installed for public relations purposes? 15 A. I don't remember exactly who said what in 16 regard to that. I think that it was part of the 17 conversation. 18 Q. Was this a conversation just between the 19 two of you? 20 A. It's my recollection that it was. 21 Q. Did he give you any opinions on other 22 topics such as Dr. Curtis Richardson's research or 23 abilities? 24 A. No, he didn't, not at that time, and I 25 don't recall him expressing opinions at any other 724 1 times, although he may have. 2 Q. All right. Do you recall a comment that 3 you made on the Urban, Davis and Aumen paper, 1992 4 paper concerning the impacts of cattails being in 5 standing water or not and in reference to freezes, 6 the impacts of freezes on cattails? 7 A. I don't recall a specific reference in my 8 comments on that paper with regard to that. I don't 9 recall specifically the comments I made on that paper 10 at this point in time. 11 Q. Do you have an opinion about the impact of 12 frost on cattail which is in standing water or 13 saturated soils as opposed to cattail which is in 14 soils that are dry? 15 A. I do have an opinion with regard to that 16 circumstance. 17 Q. What would that be? 18 A. It is my opinion that cattail plants which 19 are in locations which are inundated at the time that 20 temperatures fall below freezing do not have any 21 particular difficulty surviving those temperatures, 22 but that cattail which are routed in soils which are 23 not inundated are very susceptible to being killed by 24 temperatures below freezing. 25 Q. Okay, thank you. 725 1 (The document was marked 2 Maffei Exb. No. 7.) 3 BY MR. GAINES: 4 Take a look, sir, at what we have marked as 5 Exhibit Number 7, a two-page exhibit fax to yourself 6 from Ron Jones dated October 5, 1992. 7 Can you tell me what this refers to? It 8 states on the cover sheet "These are the distances on 9 the E-W transect," or east-west transect. 10 Do you know what this is referring to? 11 A. I believe that this refers to the transect 12 across the Refuge along which Dr. Jones took some 13 soil samples. 14 Q. And is the second page of this to your 15 understanding the results of that sampling? 16 A. They appear to be some results. 17 Q. What was that work done in connection with? 18 What was the project there? 19 A. It was work done in connection with efforts 20 to obtain data which could be used to support 21 litigation or otherwise provide information about the 22 Refuge. 23 (The document was marked 24 Maffei Exb. No. 8.) 726 1 BY MR. GAINES: 2 Q. Take a look at Exhibit 8 and tell me 3 whether that exhibit is related to Exhibit 7. 4 Is this the transect, if you know? 5 A. Well, that line appears to be drawn in the 6 general location of where I understand that transect 7 to have been placed. 8 Q. All right. 9 A. But I don't have any specific knowledge as 10 to whether that's exactly right, if the transect 11 should actually run due east and west or if that 12 slight northwest to southeast orientation is 13 appropriate or -- 14 Q. Are you familiar with this Exhibit 15 Number 8? Have you seen it before, to your 16 knowledge? 17 A. I have seen various depictions like this of 18 those transects, and I can't say that I recognize 19 this one over any of the others. 20 Q. Do the other two transects that appear 21 here, were those also transects that Dr. Jones did 22 some work along, to your knowledge? 23 A. To the best of my knowledge, they are. 24 Q. What was done with that, those results? 25 Were they ever used in any kind of a study 727 1 that you are aware of? 2 A. I don't understand, what do you mean 3 results? 4 Q. Other than what's reflected on Exhibit 7, 5 you said it was used to support litigation or for 6 other informational purposes about the Refuge. 7 What use was ever made of this sampling, to 8 your knowledge? 9 A. I believe that the data that was acquired 10 during the sampling event or events has been written 11 up. 12 Q. Are you speculating or do you know? 13 A. No, I believe that I have seen a draft of 14 that document. 15 Q. Is that a draft by Dr. Jones? 16 A. I think Dr. Jones was one of the authors. 17 Q. Okay. What's the title of that study? 18 A. I don't recall the title of that paper. 19 It's not a, I wouldn't call it a study, but it's a 20 paper. Right now I don't recall the title of that. 21 Q. When did you see the draft? 22 A. It was fairly recently, probably within the 23 last few weeks. 24 Q. Was that produced in connection with your 25 document production? 728 1 A. I don't know if I produced that or not. 2 MS. PONZOLI: I know they were produced 3 with Dr. Jones. 4 MR. GAINES: Okay. That was gone into at 5 his deposition? 6 MS. PONZOLI: At length, or since that was 7 a four-day deposition, I guess I better say it 8 is my recollection that it was gone into at 9 length. 10 MR. GAINES: All right. 11 BY MR. GAINES: 12 Q. Was there a basic conclusion or primary 13 conclusions from that paper that you could 14 articulate? 15 A. Well, I would have to say that I don't 16 recall at this point reading the document in its 17 entirety and what the conclusions were. 18 Q. Okay. Yesterday when we broke you had 19 expressed some initial observations or impressions 20 about the entry and access work that you had seen to 21 date or the data that you had looked at to date, and 22 I believe you stated that you have some other 23 portions of that answer to complete; is that correct? 24 A. I think I made a statement similar to that. 25 Q. All right. What was the unstated portion 729 1 of your answer? 2 A. Well, I had previously had discussion with 3 you regarding data presentations that were prepared 4 by consultants of your firm showing that data, and I 5 can go into that again if you want, but as I 6 recall -- 7 Q. No, I don't want you to repeat what we have 8 already gone over, but my recollection was that you 9 said you had something else to add to what you had 10 already testified to, and I said something like well, 11 we'll take that up in the morning or something like 12 that. 13 Do you recall what your thought was at the 14 time? 15 A. I do recall, and as I just said, it's 16 regards to presentations of data that I had seen, and 17 we discussed it not in connection with your question 18 regarding other impressions of this work, but in 19 connection with my understanding of the impact of 20 surface inflows on locations within the interior 21 marsh. 22 Do you recall that conversation? 23 Q. You are referring to where you referenced 24 that you felt some of the data supported some of your 25 earlier conclusions?