1
2 STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
3
SUGAR CAN GROWERS COOPERATIVE
4 OF FLORIDA, a Florida Agricultural
Cooperative Marketing Association,
5 ROTH FARMS, INC., and
WEDGWORTH FARMS, INC.,
6
and
7
FLORIDA SUGAR CANE LEAGUE, INC.,
8 UNITED STATES SUGAR CORPORATION,
and NEW HOPE SOUTH, INC.,
9
and
10
FLORIDA FRUIT AND VEGETABLE
11 ASSOCIATION, LEWIS POPE FARMS,
W. E. SCHLECHTER & SONS, INC.,
12 and HUNDLEY FARMS, INC.,
13 Petitioners;
14 vs.
15 SOUTH FLORIDA WATER MANAGEMENT
DISTRICT, an Agency of the State
16 of Florida,
17 Respondent;
18 and
19 MICCOSUKEE TRIBE OF INDIANS OF
FLORIDA, the UNITED STATES OF
20 AMERICA, and FLORIDA DEPARTMENT OF
ENVIRONMENTAL REGULATION, the
21 FLORIDA WILDLIFE FEDERATION, the
FLORIDA AUDUBON SOCIETY, and the
22 SIERRA CLUB,
23 Intervenors. /
24
25
JACK BESONER & ASSOCIATES (305) 371-1537
150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130
1
April 13, 1993
2 9:00 o'clock a.m.
One Clearlake Center #1403
3 250 Australian Avenue South
West Palm Beach, FL 33401
4
5
6 The deposition of CHARLES EDWARD
7 BARBER, JR., taken in the above-entitled cause
8 before CLAUDIA REAM-PINEDO, Notary Public within
9 and for the State of Florida at Large.
10
11
APPEARANCES:
12
FOR FLORIDA FRUIT AND VEGETABLE ASSOCIATION:
13
OERTEL, HOFFMAN, FERNANDEZ & COLE, P.A.
14 2700 Blair Stone Road Suite C
Post Office Box 6507
15 Tallahassee, FL 32314
BY: KENNETH F. HOFFMAN, Esq.
16
FOR THE UNITED STATES OF AMERICA
17
OFFICE OF THE U. S. ATTORNEY
18 155 South Miami Avenue
Miami, FL 33130
19 BY: THOMAS A. W. FITZGERALD, Esq.
20 I N D E X
21 CHARLES EDWARD BARBER, JR. PAGE NUMBER
22 By Mr. Fitzgerald 3
23
24
25
JACK BESONER & ASSOCIATES (305) 371-1537
150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130
3
1 (Witness sworn)
2 MR. FITZGERALD: For the record, I'm Tom
3 Fitzgerald representing the United States in the
4 current SWIM plan challenge in which you've been
5 designated as an expert witness, or potential
6 expert witness by the Florida Fruit and Vegetable
7 Association.
8 CHARLES EDWARD BARBER, JR.,
9 called as a witness herein, having been first
10 duly sworn, was examined and testified as
11 follows:
12 EXAMINATION
13 BY MR. FITZGERALD:
14 Q Have you been deposed before,
15 Mr. Barber?
16 A Yes.
17 Q How many times?
18 A As far as being deposed, probably two
19 or three. I'm not sure.
20 Q Do you remember or recall when the last
21 time was that you were deposed?
22 A It would have been at least ten years
23 ago.
24 Q Was that while you were employed by the
25 State of Florida?
JACK BESONER & ASSOCIATES (305) 371-1537
150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130
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1 A That's correct.
2 Q Do you remember what type of case it
3 was?
4 A I don't know, I testified in probably
5 at least a couple of dozen administrative
6 hearings and circuit-court cases for the
7 department.
8 I was not deposed very many times, so I
9 don't recall the specifics of the deposition.
10 I do recall one that involved a dredge
11 and fill enforcement case in St. Augustine, and I
12 think that was the last time I was deposed.
13 Q Those couple dozen hearings in state
14 administrative hearings you recall testifying,
15 those were while you were with DER?
16 A That's correct.
17 Q Relating to permitting matters?
18 A Permitting and enforcement.
19 Q Have you testified other than during
20 your tenure as a state employee?
21 A No.
22 Q In the matters in which you testified,
23 were you qualified as an expert in any particular
24 field for that purpose?
25 A A variety of fields.
JACK BESONER & ASSOCIATES (305) 371-1537
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1 Q What fields were you designated or
2 testifying as an expert in?
3 A I don't remember how it would be
4 phrased in each specific case, because the
5 attorney on the case would make that judgment.
6 But generally in the areas of biology,
7 water quality, water quality standards, wetlands
8 impacts, discharge impacts, I think aerial photo
9 interpretation a few times.
10 General things that had to do with the
11 impacts of discharges or alterations of wetlands
12 on those wetlands or on rivers or lakes or
13 streams or estuaries.
14 Q Although you've testified before and
15 probably are familiar with this, and deposed
16 before, if at any time during the proceeding I
17 ask a question, you don't understand the nature
18 of the question I'm asking or it requires
19 clarification to make any sense, which happens,
20 or you'd like to take a break, stretch your legs,
21 whatever, please just tell me and we'll try and
22 work around or find a useful point for everybody
23 to stop.
24 When did you first become aware that
25 you were going to be designated as a witness for
JACK BESONER & ASSOCIATES (305) 371-1537
150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130
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1 the purposes of the SWIM plan challenge by the
2 Fruit and Vegetable Association?
3 A I don't know, probably around the time
4 that the decision was made to file a challenge.
5 Q Did you participate in discussions with
6 anyone at the Fruit and Vegetable Association in
7 developing the actual petition challenging the
8 SWIM plan adopted by the Board on March 13th of
9 1992?
10 A I'm sure I did.
11 I don't recall any specific meetings or
12 discussions, but I was involved in the process
13 from the beginning.
14 Q When were you first employed by the
15 Fruit and Vegetable Association?
16 A I don't remember exactly. It was
17 sometime in, I believe it was sometime in '91,
18 and I want to say it was probably around the
19 summer of '91.
20 But I could -- That's just based on my
21 memory. I haven't looked back to see in my files
22 when I started billing them, whatever.
23 Q What was the nature of the services you
24 were retained to render at that time in 1991?
25 A I'm not sure at this point.
JACK BESONER & ASSOCIATES (305) 371-1537
150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130
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1 We had a project, I remember that, that
2 started, I think might have been -- I'd have to
3 go back and look, but it might have dealt with
4 the impacts of the discharges and trying to
5 develop a study to determine vegetable discharges
6 and BMP impacts.
7 But it quickly moved away from that
8 into a lot of other areas.
9 Q What other areas?
10 A The rule-making regarding the
11 Everglades, and then later on in the SWIM plan
12 work.
13 Q Do you have a written contract with the
14 FFV?
15 A I had one, or I had a written proposal
16 and a letter of acceptance or something like that
17 originally with regard to that first phase, but
18 right now it's more or less, it's a verbal
19 arrangement.
20 I operate based on instructions from
21 Mr. Botts and from the CARE committee.
22 Q Is Mr. Botts the coordinator of all
23 your work on behalf of the FFV?
24 A He's my contact person with the
25 association, and he directs my activities insofar
JACK BESONER & ASSOCIATES (305) 371-1537
150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130
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1 as the association is concerned, though I do more
2 or less answer to the CARE steering committee.
3 Q And who comprises the steering
4 committee of CARE, C-A-R-E?
5 A Johnny Schlechter chairs the committee,
6 and I don't know, there are a number of people on
7 it from the various companies.
8 Ed Hamilton is on there from Aduda. I
9 believe Ed is on.
10 It gets mixed because we have a lot of
11 people that attend those meetings in the
12 companies, but the U. S. Sugar -- I mean, I'm
13 sorry, South Bay Growers has a representative on
14 there.
15 Q How often do you attend the meetings of
16 CARE?
17 A I attend whenever they have one. I
18 probably attend most of them.
19 There are some specific areas that I
20 don't get into, and I don't attend those
21 meetings, but the ones where they have any need
22 for technical evaluation, I attend.
23 Q And Mr. Botts lets you know or the
24 CARE --
25 A Yes, right, a notice generally is sent
JACK BESONER & ASSOCIATES (305) 371-1537
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1 out by Mr. Botts and we have a meeting.
2 Q So over the last, well, since the
3 period when you were working on the EAA rule, can
4 you estimate for me the number of meetings that
5 have had technical facets that have required your
6 attendance?
7 A I don't know, quite a few.
8 Q On a monthly basis, would you say?
9 A Perhaps.
10 Q Now during the time period you've been
11 working with the Florida Fruit and Vegetable
12 Association stretching back to sometime in 1991,
13 have you also been employed on behalf of any
14 other entity, business, trade association or
15 other -- or sole proprietorship which engages in
16 farm activities associated with the Everglades
17 agricultural area?
18 A Yes.
19 Q What other of those types of
20 organizations or individuals have you been
21 associated with during that period?
22 A Well, in different capacities, some of
23 them -- Well, they wouldn't, wouldn't generally
24 cover the same areas, but the Everglades
25 agricultural area, Environmental Protection
JACK BESONER & ASSOCIATES (305) 371-1537
150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130
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1 District, the Florida Sugar Cane League, though
2 not very often, and lately it's been -- the last
3 thing I did for them involved some air rule
4 workshop, something like that, so not necessarily
5 Everglades issues.
6 Sugar Cane Growers Cooperative; King
7 K-i-n-g, Ranch, Florida Division; May Sod
8 Services; Talisman Sugar.
9 There may have been a few others, but
10 those are the main ones.
11 Q Okay, during what period have you been
12 performing services for the EPD?
13 A I think it was August of last year,
14 could have been September, something like that,
15 somewhere in that area, time-frame-wise, I
16 entered into a contract with EAA/EPD.
17 Q What was the nature of the contract
18 service?
19 A To provide technical oversight for
20 three projects that they also had undertaken.
21 Q What were those three projects?
22 A One was the IFAS study for BMPs.
23 One was the -- I'm sorry, the Lake
24 Okeechobee permit; the EAA had a permit to
25 discharge with Lake Okeechobee with the South
JACK BESONER & ASSOCIATES (305) 371-1537
150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130
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1 Florida Water Management District.
2 And the third was the Duke Wetlands
3 project.
4 Q Who was overseeing the Duke Wetlands
5 project on behalf of the EAA/EPD prior to your
6 assuming those duties last August or September?
7 A I don't know.
8 Q When you say last August, you -- or
9 September, you mean '92?
10 A Yes.
11 Q That project by Duke was already up and
12 running for some time, was it not?
13 A Yes, the project started as I recall in
14 about 1989, and for the first year was with the
15 Sugar Cane League, and around that period
16 transferred to the EAA/EPD.
17 Q Who in the EAA/EPD was coordinating
18 that program for the EPD itself; in other words
19 not your counterpart before you assumed it, but
20 who within the Protection District was the
21 non-technical coordinator, if you will?
22 A I suppose the Board handled that, Board
23 of Supervisors.
24 I don't know.
25 Q Well, who did you communicate with and
JACK BESONER & ASSOCIATES (305) 371-1537
150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130
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1 deal with at the EPD and deal with in respect to
2 the Wetlands project?
3 A I didn't, not with respect to the Duke
4 project.
5 Q What were your duties with respect to
6 the Duke Wetlands project?
7 A I didn't have, prior to -- Oh, when I
8 was at Sugar Cane League I did, when it
9 transferred to the EAA/EPD, and as long as I was
10 still at Sugar Cane League, I think there was a
11 lapse period, I was, on behalf of Sugar Cane
12 League, supposed to keep an eye on that project.
13 But I left the Sugar Cane League then
14 after a while and I lost track of that project
15 then, until I picked it back up last year.
16 Q Okay, and then starting last year what
17 was the nature of the work you were to perform in
18 connection with the wetlands project?
19 A To provide general oversight as far as
20 advising the Board on the needs of the project;
21 to help to evaluate the budget; to help to
22 evaluate the deliverables; and help to plan for
23 the ultimate conclusion of the project.
24 Q When was the project contemplated to be
25 concluded?
JACK BESONER & ASSOCIATES (305) 371-1537
150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130
13
1 A I'm not sure.
2 The original project as I recall from
3 the late 1980s was to be a five-year project, but
4 after I dropped out things changed, a few things
5 were added, and the project seemed too evolve a
6 little bit, at least based on my reading of it.
7 So that I'm not sure, in the minds of
8 different people, probably projects should end at
9 different times.
10 But based on my understanding since I
11 started back with the project, it will probably
12 go at least a year longer than the five years.
13 Q What would be the potential or
14 projected termination date of the project then as
15 you understand it now?
16 A I couldn't say.
17 We will set up a series of meetings
18 over the next few months to make that decision.
19 Q Who's proposed those meetings?
20 A I have.
21 Q And what is the scope of the project
22 right now as you understand it?
23 A Well, right now what I think, and is
24 left to be completed, is essentially the Dosing
25 study, any conclusions that they may have or may
JACK BESONER & ASSOCIATES (305) 371-1537
150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130
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1 develop with regard to the wetlands impact and
2 any conclusions that they may have regarding
3 recommendations for water management, or I
4 suppose could be treatment technologies to reduce
5 the impacts that they determine are unacceptable.
6 Q Do you understand then from your
7 association with the project that in fact the
8 Duke project has documented that phosphorus
9 levels are a problem in the Everglades system?
10 A They're in the process of determining
11 that now. They have a series of Dosing plots and
12 they're subjecting the plots to various levels of
13 phosphorus and other things, other constituents,
14 to try to assess what level of phosphorus may
15 cause a change in vegetation or in the plots.
16 Q Were you familiar with an earlier Duke
17 Dosing study or a portion of the early project
18 that involved a series of fox-like fiberglass
19 testing sites set near to a levy in WCA2A?
20 A They have had plots around, but I
21 haven't actually been out to the sites and looked
22 at them.
23 I think they have, they have a series
24 of experiments going on now out there and they
25 had some going on before, but I don't know how
JACK BESONER & ASSOCIATES (305) 371-1537
150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130
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1 that came out.
2 Q Now the current series is in a flow
3 way, a concrete flow-way structure, right?
4 A I'm not sure.
5 Q So you've never visited any of the Duke
6 study sites?
7 A No.
8 Q And you're not familiar with their
9 construction or design from review of the yearly
10 reports from the Duke University Wetland Center
11 on the subject?
12 A No.
13 What happened was none of those
14 decisions had been made when I was involved with
15 the project on the first year. The concepts were
16 there to do the work, but none of the project
17 design had been done, or at least I hadn't seen
18 any of it.
19 While I was out of the project is when
20 they did the design, and they put them in and
21 they published or they have written a series of
22 annual reports, the latest of which probably has
23 that information in.
24 There's a draft out. I haven't -- I've
25 scanned the draft, I haven't read it carefully,
JACK BESONER & ASSOCIATES (305) 371-1537
150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130
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1 because it was not a final copy and I didn't want
2 to read it twice.
3 The final copy is due out, as far as I
4 know, any day now, and I will read that at that
5 point and --
6 Q Okay, how about the '91 and '92 annual
7 reports?
8 A Okay, I've read the '91 annual report
9 and I've scanned the '92 annual report where they
10 talked about what they needed to do.
11 And I believe in there they describe
12 some of the things that they were going to do
13 with Dosing, what kind of materials they use, so
14 forth.
15 Q Are you relying on either of those two
16 years, '91 and '92, in formulating any of your
17 opinions for testimony in this case?
18 A I may later, after I have a chance --
19 I want to do two things:
20 One is to completely review those; and
21 then the second thing is I do plan to visit the
22 site -- I've tried to visit it a couple times --
23 and take a look at the site before I formulate
24 any final opinion.
25 Q When do you expect to do that?
JACK BESONER & ASSOCIATES (305) 371-1537
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1 A I hope sometime before it gets to be
2 too hot.
3 Q So you have no current date set or --
4 A No.
5 Q -- agenda?
6 A We set up two, two visits with the
7 Board of the EAA/EPD, and both were rained out;
8 called on account of weather.
9 Once we were actually down ready to get
10 on the air boat, it stormed us out, so . . .
11 Q In your sight of the Duke Wetlands
12 projects on behalf of the EPD, with whom -- or at
13 Duke or the Duke Wetland Center -- do you deal
14 with or coordinate with?
15 A As far as the coordination, it depends
16 on the subject.
17 If it's simply a matter of getting
18 documents mailed or getting monthly reports or
19 getting whatever, I will generally call Lisa
20 Phelps, the assistant to Dr. Richardson.
21 If it is a technical question or a
22 management question, I would call Dr. Richardson
23 directly.
24 Q What have been the nature of your
25 duties with the EPD on their behalf with regard
JACK BESONER & ASSOCIATES (305) 371-1537
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1 to the IFAS BMP study?
2 A Kind of -- Well, they had, they had
3 developed the program with IFAS before I started
4 with them.
5 I had some knowledge of the program
6 because, as a part of my FFVA duties, I had
7 served on a technical committee that was involved
8 in getting what Vegetables thought they needed
9 out of the project, and the vegetable interests
10 had contributed some money, several tens of
11 thousands of dollars to the project independent
12 of the EAA/EPD, and I had worked with that
13 committee and we had several meetings.
14 Q Who do you -- did you deal with at IFAS
15 on that?
16 A Dr. Izuno and Dr. Botchard.
17 Q Is that study complete?
18 A No, they did a study some years ago for
19 the Water Management District, and I think they
20 finally completed that, but the present study is
21 ongoing.
22 Q When is the projected completion date?
23 A I don't remember now, it's a three- --
24 I want to say it's a three-year study, but it may
25 be a five-year study.
JACK BESONER & ASSOCIATES (305) 371-1537
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1 Q When did it begin?
2 A Last year.
3 Q That's to evaluate the efficacies of
4 the BMPs mandated by the EAA rule?
5 A That's correct.
6 Q Now you participated in the rule
7 workshops to develop the EAA rule, did you not?
8 A Yes.
9 Q On whose behalf were you appearing
10 there?
11 A FFVA.
12 Q In preparing to represent the FFVA at
13 or throughout the EAA rule development process
14 did you familiarize yourself with background
15 materials related to the earlier IFAS study that
16 was completed in '90, '91 somewhere around
17 there, --
18 A Yes.
19 Q -- on BMPs?
20 A Yes, I attended, I don't know, I
21 attended several meetings that Dr. Izuno had and
22 talked with him about it and reviewed some of the
23 materials.
24 I was a little -- even though when I
25 was with the Sugar Cane League I had not been
JACK BESONER & ASSOCIATES (305) 371-1537
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1 directly involved in that project, somebody else
2 on our staff had, I had some familiarity with
3 what they were doing.
4 Q Who on the staff when you were with the
5 Sugar Cane League had responsibility for the BMP
6 issues?
7 A Well, it would have been -- We wouldn't
8 have divided it up into BMP issues. Any IFAS
9 study like that would have been an ag research
10 study and Dr. Orsenigo.
11 Q When exactly did you leave the Sugar
12 Cane League?
13 A In March of 1991, I believe.
14 Q In formulating any of your opinions,
15 conclusions or views with respect to the SWIM
16 plan challenge did you anticipate relying in any
17 way on the IFAS BMP study, completed study, not
18 the current one?
19 I assume we'll not have the results in
20 time.
21 A Yes.
22 Q What aspects of the IFAS study do you
23 anticipate relying upon?
24 A The general information that was
25 provided on the types of BMPs that may be
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1 available and any information that we could get
2 on the effectiveness of those BMPs.
3 Q In review of that document or documents
4 then in the course of your presence at
5 rule-making workshops, did you hear the
6 presentations by Dr. Izuno and Dr. Botchard
7 regarding the projected efficacy of the BMPs
8 described in that program?
9 A Yes.
10 Q Do you agree with the projections by
11 Dr. Izuno and Dr. Botchard?
12 A I think that the overall range of
13 effectiveness across the entire EAA, which was
14 their point, of something like twenty to sixty
15 percent potential reduction for the entire EAA
16 may prove to be an appropriate range.
17 As far as the individual numbers that
18 they got from the individual BMPs, I'm not so
19 sure that those numbers would accurately reflect
20 what we'll eventually get.
21 Q Can you describe what you mean by
22 individual numbers?
23 A Well, they would assign, and I don't
24 keep those numbers in my head, but they would
25 assign a value for each individual type of BMP,
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1 and like they may assign a value, a range of
2 values for banding, for instance, and I don't
3 know how accurate those numbers would be.
4 I think the larger the area that they
5 tried to cover, probably -- and with a broad
6 range, probably the closer they came to what
7 might be achieved.
8 Q Are you aware of any studies either in
9 compilation or that have been completed that
10 would contradict the broad-scope range of twenty
11 to sixty percent for the EAA?
12 A No.
13 Q Are you aware of any studies in
14 contemplation being processed now or completed
15 that would challenge the individual BMP efficacy,
16 such as that that might be achieved by banding,
17 by modified water-pumping practices, by
18 crop-rotation mechanisms or other suggested BMPs
19 in the IFAS study?
20 A Well, the present IFAS study would tend
21 to do that.
22 It was not necessarily meant to
23 challenge, but it would confirm and further
24 refine their numbers for different kinds of BMPs.
25 Q I understand that that study is --
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1 will be attempting to confirm and perhaps refine
2 the broader estimates of the earlier work, but am
3 I not correct in believing that there are no
4 results from that study yet?
5 A That's correct.
6 I have received personally one set, one
7 data set, which we've supplied copies to the
8 South Florida Water Management District.
9 Any -- The EAA/EPD Board has
10 instructed Dr. Izuno to furnish these disks to
11 the Water Management District at the same time as
12 he furnishes in them to me.
13 We have one set, so we're probably
14 three or four months into the project at this
15 point.
16 Q What type of data is being collected
17 and transmitted as part of the project?
18 A Right now it's simply some baseline
19 information from the different farms.
20 He set up ten sites, and some of them
21 have vegetables, mixed sites, some of them are
22 cane sites and they're scattered across the EAA.
23 And all -- he doesn't have -- at
24 least he doesn't to my knowledge, he may now, but
25 he's in the process of calibrating the pump, so
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1 you don't really have good flow information at
2 this point so we can calculate loads yet.
3 But he's gathering all the information
4 that he will need to do that later; in other
5 words, taken the head differentials, the pump
6 speeds, all of that stuff, and the chemistry.
7 So that is the kind of information
8 we're getting.
9 Q So to-date it's strictly baseline
10 information, has no data on load reductions; and
11 in fact BMPs that are going to be evaluated, if
12 you're in baseline conditions, have not been
13 implemented in those fields as yet?
14 A That's correct.
15 He will, as a part of this project and
16 sometime in the future, he changes when that's
17 going to be, because we've started out sort of
18 behind, but at some point in time you'll start to
19 phase some of the farms in and do BMPs on those
20 farms, and I look for that to come sometime in
21 the next -- well, certainly within the next year.
22 And possibly by the end of year he'll
23 start to phase those in.
24 Q Is it your understanding that generally
25 for BMPs to produce some kind of measurable
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1 result you need to be looking in terms of a full
2 hydrologic year or calendar year in order for
3 some efficacy to show up?
4 A It's -- It would be difficult to
5 attribute a change to a BMP without having at
6 least a cycle.
7 You might be able to do that if you had
8 enough data points and enough farms and so forth,
9 but it probably wouldn't be a safe bet to do it
10 that way.
11 Q That being the case then, am I correct
12 in believing that the efforts by Dr. Izuno, the
13 current IFAS study, will not yield usable results
14 in time for the projected hearing date for this
15 case of October 1993?
16 A Well, I'd have to rely on Dr. Izuno to
17 tell me that.
18 If he found something -- I mean, he's
19 the researcher that was part of the research team
20 that developed the original figures, and if he
21 found something that he was comfortable with with
22 regard to those reductions based on six months'
23 worth of information or something like that, I
24 certainly would consider that, because of his
25 expertise.
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1 Q So you would be relying then on
2 Dr. Izuno's estimation of the value or
3 implications of any data resulting from his study
4 that was less than, you know, a year from now?
5 A I probably wouldn't solely rely on his
6 opinion, but certainly I would take that into
7 consideration.
8 Q What else would you be relying upon, if
9 not Dr. Izuno, in that area?
10 A Well, my own experience, for instance,
11 and we may -- I might talk with others in the
12 FFVA group that know quite a bit about farming
13 and have developed some feel for the potential
14 reductions from the BMPs.
15 Q Who in the FFVA has any expertise other
16 than from engaging directly in farming on BMPs?
17 A Well, not on BMPs per se, but on the
18 kinds of farming activities that they use.
19 People like Julio Sanchez with South
20 Bay Growers would be a good resource for me.
21 There probably are others, but people that
22 understand the way that they farm and why they
23 farm the way they do, from an engineering point
24 of view or an agricultural point of view.
25 Q Prior to becoming involved with the EPD
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1 and looking at IFAS '90-'91 study results, what
2 was your prior experience in developing or
3 evaluating BMPs?
4 A My prior experience? Pretty much the
5 same as everyone else's.
6 We started looking at this when the
7 rule-making began and started meetings with
8 Dr. Botchard and Izuno in trying to evaluate,
9 talking to farmers, talking to the ag engineers,
10 and trying to develop a program.
11 We looked at a program ourselves at
12 FFVA at one point before we threw in with the
13 EAA/EPD on theirs.
14 Q When did you look at that program as,
15 you know, distinctly part of the FFVA prior to
16 throwing in with EPD?
17 A About the time I started as a
18 consultant for FFVA, one of the first things we
19 did was to see through to develop -- We knew that
20 we would need our own analysis, that we didn't
21 know what was going on over with the Sugar Cane
22 League, but their analysis of BMP impacts would
23 probably be based on sugar cane, as would the
24 Sugar Cane Growers Cooperative if they were doing
25 one.
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1 So we had to get some information on
2 vegetables. We had none.
3 And we started to develop a program to
4 get our own, and then the decision was made to go
5 with IFAS.
6 Q You came over, that was in about
7 mid-'91, as I remember your testimony?
8 A Mm-hmm.
9 Q Prior to that, when you were with the
10 Sugar Cane League, you had done no work on BMPs?
11 A I don't remember dates. I know that
12 the water BMPs, water-control mechanisms which
13 are the kinds of BMPs that are available for
14 sugar cane, were looked at.
15 I don't remember if they were being
16 looked at prior to my leaving the league or not.
17 Q Were you working on it?
18 A Well, no, I would not have personally
19 been working on it.
20 Q And in your other work after leaving
21 DER for any of your agricultural clients had you
22 done any work on BMPs up through what we're
23 discussing in relation to the EAA rule and
24 starting in roughly mid-91?
25 A Not on BMPs, no.
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1 Q When you began the work for the FFVA in
2 mid-'91 did you cause or see the results of any
3 literature search or other effort to compile the
4 results of other specialists' work on BMPs for
5 farming activities?
6 A No just the IFAS work.
7 We did look at one point in -- at the
8 possibility of bringing in other people outside
9 of the IFAS group who would have some expertise
10 in it, but we never did that.
11 Q Who is funding the current IFAS study?
12 A The EAA/EPD.
13 Q And what is that setting them back?
14 A I don't recall. It's -- The way we're
15 set up, I mean, I could give you a guess, but
16 there's an appropriate number out there, I'd
17 rather get whatever the number is.
18 It's certainly over $400,000. It's
19 possibly over $500,000 per year.
20 Those bills and that aspect of the
21 project, we have an accountant for the EAA/EPD
22 who handles the bills, a CPA.
23 Q Did Dr. Izuno submit a funding proposal
24 or project proposal to the EPD prior to them --
25 A Yes.
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1 Q -- following through on this?
2 Have you seen that?
3 A I'm sure I have. I don't remember the
4 specifics.
5 Q The reason I ask, from your earlier
6 description of your duties I understood you were
7 evaluating projects and coordinating, this kind
8 of thing.
9 I guess I'm driving at, did you have a
10 role in reviewing the project, determining what
11 the deliverables would be; whether it in fact
12 suited the needs of the EPD members?
13 A No, not as the EPD technical
14 consultant.
15 Now this year, that will change.
16 What happened, last year EAA/EPD hired
17 me pretty much after everything was in motion,
18 and so what will happen this year, we're in the
19 process of doing that, we will meet with each of
20 the people that are either under contract or have
21 a grant, and we will work the details for next
22 year's budget out in a much more formal way.
23 I mean, they have a contract, but they
24 did -- not as a technical reviewer of that on
25 staff, or as a consultant I should say.
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1 They had that committee that more or
2 less made those decisions and, while I
3 participated in that, my primary emphasis at that
4 point was on seeing to it that the vegetables
5 were represented, not for the whole EAA/EPD.
6 Q Has IFAS or Dr. Izuno specifically
7 given any progress report briefings to the EPD or
8 any of the members regarding the project?
9 A Yes, he gives a monthly report and a
10 quarterly report, and he just sent out I believe
11 a quarterly report.
12 Q Are those being provided to the
13 District?
14 A Yes, through Pat Walker, who sits as
15 the ad-hoc member of the -- on the EAA/EPD
16 Board.
17 So she's present for the presentation
18 and she receives any -- as far as I know she
19 receives any documents that the Board of
20 Supervisors receives.
21 Q Other than the Duke Wetlands study and
22 the IFAS study are there any other ongoing
23 studies you have any responsibility or duties
24 with respect to being conducted by the EPD
25 related to the issues in the challenge to the
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1 SWIM plan?
2 A I don't know whether -- I don't know
3 how it relates to the challenge to the SWIM plan.
4 There are -- Other than the projects that I've
5 mentioned, there are several projects that have
6 been added in the last year, since my contract,
7 since I signed my contract, that are additional
8 responsibilities for me.
9 Some may at some point relate to the
10 discharges from the EAA.
11 Whether that relates to the SWIM plan
12 or not, I don't know.
13 Q Okay, you mentioned the Lake Okeechobee
14 permitting. What other projects did you have in
15 mind other than those that you were currently
16 responsible for?
17 A The others that I'm responsible for,
18 I'm right now, this is very new, I'm responsible
19 for monitoring the lake-level work that the Corps
20 of Engineers is doing.
21 We have recently put out a proposal and
22 accepted some work for the Hester-Dendy study in
23 the Dr. Richardson test plot area.
24 Then the third one is a two-parter that
25 has been approved by the Board but may or may not
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1 ever be done, I think it will be; would involve
2 some testing of some maintenance dredge in
3 hypotheses.
4 What we're trying to determine is the
5 sediment settling rate in some canals, so that we
6 can advise the growers as to how often they
7 should maintenance-dredge in order to reduce
8 their sediment load transport from their farms.
9 And we have two proposals or two
10 projects that we've just now developed, I think
11 they were approved at the last Board, that we'll
12 be proceeding with.
13 In fact, they're probably working on
14 them this week, starting to work on them.
15 Q These sediment transport projects, are
16 those unique to the vegetable-growing operations,
17 or are those throughout the EAA?
18 A No, they would be -- they're on two
19 plots. One of them is a 298 district, so it's a
20 big canal, goes into the lake.
21 The other one is in the S-2 basin, it's
22 on a farm that pumps -- that would pump, not
23 only pump north, but south. And it's a farm that
24 has vegetable, sod and sugar cane on it.
25 But it would be -- what we were really
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1 shooting for was more or less size: We wanted a
2 small one and a bigger one, kind of a farm canal
3 size, then a secondary size.
4 And I don't know how significant simply
5 having two would be, but that's all that the
6 Board felt like it could afford, I suppose.
7 Q You mentioned your contract with the
8 EPD. That's not an exclusive contract, is it?
9 You still work for other clients?
10 A That's correct.
11 Q Currently what percentage of your work
12 is derived from client base located in the EAA?
13 A Ninety percent probably, or more.
14 Q Has that been true historically for
15 you?
16 A Yes.
17 Q Since, for how long? How far back?
18 A Since I started in March of '91.
19 Q Okay.
20 A I do an occasional other type of
21 client, but my primary client base is in the EAA.
22 Q What's the nature of the duties you
23 were performing for Talisman?
24 A Permitting; acquiring permits for the
25 master permit for their discharge.
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1 Q When were you doing that?
2 A Well, they had another consulting firm
3 that made the initial application, and then they
4 asked me to do the follow-up with the
5 completeness, summary letter, responses.
6 And we'll take that on up to, probably
7 to the issuance of the permit.
8 Q And what work were you performing for
9 Mace Sod?
10 A Same kind of work -- M-a-c-e -- same
11 kind of work, except I did the initial permit
12 application.
13 Also with Mace I set up the monitoring
14 program and really managed all of the aspects of
15 it, which that hasn't happened yet with
16 Talisman.
17 I don't know who will do that, but I'm
18 not doing it at this point in time.
19 Q Is Talisman hydrologically isolated
20 within the EAA?
21 A Oh, no.
22 Q To what primaries does it discharge?
23 A Well, Talisman has property all over
24 the EAA.
25 Q The mill itself?
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1 A The mill itself would -- Well, I don't
2 know. It goes out both to the north, New River
3 Canal, and to the Miami Canal, I believe.
4 Q To your knowledge is any of Talisman's
5 property in 298 districts?
6 A Yes.
7 Not much, a few. I want to say a few
8 sections. Not much.
9 Q Okay, do you know how much property
10 Talisman farms for itself?
11 A There's about 55,000 acres in the
12 master permit application.
13 Q Did you have any role in advising
14 members of the FFV of the desirability of
15 electing the early baseline option?
16 A If it came up -- It probably did come
17 up at meetings.
18 If it came up with any of the vegetable
19 growers, I would have advised them to go with the
20 early baseline.
21 Q Did you perform services for any
22 vegetable growers in the EAA in terms of drafting
23 their permit applications under the rule?
24 A No.
25 Q Okay, have you done that for any
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1 clients in the EAA?
2 A Doing what now? What's the question?
3 Q With regard to the rule, EAA rule, the
4 BPM rule.
5 A I'm sorry, restate the question.
6 Q Have you assisted anyone in preparing
7 their permit applications on the EAA rule?
8 A No, FFVA; but yes, as far as others I
9 have.
10 Q Okay, was that done on an individual
11 client basis?
12 A Yes.
13 Q Okay, that's how Talisman came up, and
14 Mace and others?
15 A Right.
16 Q How many such clients have you
17 performed that task for?
18 A Let's see, four.
19 Q Other than Mace and Talisman, who were
20 the other two?
21 A Fritz Stein and King Ranch.
22 Q Does King Ranch farm in the EAA under
23 its own name?
24 A Yes, it's a Florida division. As far
25 as I know they call their Florida division, I
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1 think.
2 Q What's the status of those four
3 permits, to your knowledge?
4 I think you already said where Mace
5 stood and Talisman, how about the other two?
6 A As far as I know, Stein's, we should
7 have -- the start report is probably completed on
8 Stein's parcel.
9 And King Ranch is, we're waiting to
10 hear back from the District.
11 I don't expect any trouble. I think
12 it's pretty complete.
13 Q Are -- Which of your clients are -- of
14 those four are electing early baseline option?
15 A Let's see, King and Mace, I believe,
16 yeah, King and Mace.
17 Q Do you know why Talisman is not
18 electing it?
19 A No. When they did their application
20 with another consultant, that decision was made.
21 Q Did you concur in your hindsight over
22 that one; that it was a wise decision?
23 A Yeah, it probably wasn't a bad
24 decision.
25 They have all cane, and for all-cane
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1 farmers, somebody that has all sugar cane, it's
2 probably not a bad option.
3 Q You mean not taking the option is not a
4 bad choice?
5 A Right, not taking the option is not a
6 bad option.
7 Q For Mr. Stein's property?
8 A He's not early baseline.
9 Q Okay, and you handled that one --
10 A Yes.
11 Q -- from the get-go?
12 A Yes.
13 Q Did you recommend that he not select
14 the early baseline option?
15 A Yes.
16 Q Why?
17 A Mr. Stein's property is located near,
18 right near the levy of Lake Okeechobee. He's
19 subject to huge amounts of seepage.
20 He also uses very very very little
21 phosphorus. I couldn't think -- can't think of
22 any way that I could get Mr. Stein's reductions
23 down on an individual basis by twenty-five
24 percent.
25 However, I do suspect that when the
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1 numbers come out, that Mr. Stein's normal
2 discharge, because of all these years of applying
3 almost no, almost no phosphorus in the seepage,
4 he'll have very good water quality.
5 I don't know that, but I suspect he
6 will.
7 Q Wasn't there another add-on or addendum
8 to the rule right at the very end for adoption to
9 account for situations like Mr. Stein's?
10 A Yes, the seepage, right.
11 Q So he would take the benefit of that
12 special provision?
13 A But even taking the benefit of that,
14 Mr. Stein only puts a few pounds of phosphorus
15 per acre per year on his property.
16 The seepage problems are such that it
17 would be very difficult for him to not pump; to,
18 you know, go -- because rainfall, the rainfall
19 number, this is something we won't know until we
20 get into the later monitoring, but the rainfall
21 number may mean very little as far as his pumping
22 activity is concerned, because of the seepage.
23 So we sort of roll the dice on the fact
24 that we think he probably will come up with a
25 very low number; he'll just do the best he can;
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1 and he will be a relatively clean discharger.
2 If that's not the case, then we guessed
3 wrong.
4 Q Has he ever had done for his property
5 hydrological testing?
6 A No.
7 Q Seepage testing?
8 A We looked at some of the information, I
9 looked at some of the information that the Corps
10 had from years ago on seepage, but that was about
11 it.
12 We don't have any site-specific.
13 Q Is that the Corps seepage study like
14 l946 or something, pretty old?
15 A Yes.
16 Well, I think there was another updated
17 investigation, but it's pretty old.
18 Q Have you reviewed the miss Missimer --
19 M-i-s-s-i-m-e-r -- & Associates report on seepage
20 done on two co-op tracts adjacent to Loxahatchee?
21 A I have not reviewed that report, though
22 I do believe that I talked with one of the
23 engineers, I don't even know his name, that
24 worked on that project at one point.
25 Q Tom Horvath?
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1 A Yes, that sounds right.
2 I was aware of the fact that they had
3 done one. He sort of said some of the things he
4 found.
5 Q You said earlier that you would
6 normally recommend to vegetable growers that they
7 opt for the early baseline option. Did I
8 understand that correctly?
9 A Yes.
10 Q Why is that?
11 A Because their discharges I would expect
12 to be higher than sugar cane by a lot, several
13 times.
14 Q On what do you base that view?
15 A Based on Izuno's work and also based on
16 my understanding of what happens out there, how
17 much fertilizer that they apply; more fertilizer,
18 they have more water-control problems; they can't
19 really allow their crop to flood.
20 And I believe years ago, and I don't
21 have a copy or I don't think I have a copy of
22 this, the League did some work before I came with
23 the League, like in the late seventies, that
24 indicated that vegetable discharges were much
25 higher.
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1 Dr. Earl Shannon did that work, and
2 I've talked to Dr. Shannon about it a few times.
3 Q In assisting in the EAA rule
4 development workshops and in reviewing the SWIM
5 plan, in fulfilling your other duties for the EPD
6 and individual clients, have you had reason to
7 acquaint yourself with the phosphorus content of
8 rainfall in the EAA watershed?
9 A I've -- I'm familiar with the
10 arguments about what the rainfall numbers are.
11 Q Have you formed an opinion as to what
12 the correct version of that argument is?
13 A Yeah, I have an opinion.
14 I don't know whether it's the correct
15 version.
16 Q Well, if you have an incorrect opinion,
17 I'd love to hear it, or a correct opinion.
18 A It's probably a correct opinion, but it
19 doesn't deal with the correctness of the opinions
20 of others.
21 I think the rainfall numbers are -- at
22 least I've seen the samplers -- in fact, we had
23 bought two of them when I was with the Sugar Cane
24 League, and the District operated them and I
25 talked with the District about -- All I know is
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1 what the District did. I have no knowledge about
2 what the federal government has done in terms of
3 rainfall or anything else.
4 We placed those -- those rainfall
5 devices out where the District wanted them, and
6 it's my understanding that the phosphorus that
7 falls from the sky in rainfall is generally a
8 particulate attached to something, particulate.
9 If that's the case, the samplers are
10 generally incorrect placed, if they're placed
11 like the ones I saw.
12 Q So --
13 A So I'm not sure how good any of the
14 numbers are.
15 Q On what do you base your conclusion
16 that they're incorrectly placed?
17 A They wouldn't pass EPA muster for
18 particulate monitoring at all.
19 In fact, some of the sites would have
20 been rejected. A particular monitoring had been
21 rejected as a particulate monitoring site, one of
22 them I know had been, so the problem is as to how
23 do you determine the appropriate level of
24 phosphorus?
25 It's not appropriate to throw out the
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1 dry side and just say: Well, we're only going to
2 use the wet side.
3 It's also not very appropriate to have
4 localized recruitment of particulate matter on
5 the dry side.
6 So you have to weed that kind of
7 information out of the data, and I don't know
8 that's been done by anyone.
9 Q Are you familiar with -- What's the
10 most recent work you've seen on that, on the
11 rainfall issue in determining the total
12 phosphorus or orthophosphorus contents of
13 rainfall offsetting for dry deposition in the
14 area?
15 A Just general debates at workshops. I
16 haven't seen any written information on that
17 whatsoever.
18 Q Okay, have you heard recent discussion
19 of a rainfall composition in the range of thirty
20 to thirty-five parts per billions?
21 A I've heard that.
22 Q When did you hear that?
23 A That's been around for a while; that
24 the number's around the park or over cost
25 somewhere, more than likely were in that range.
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1 Q I'm talking in the EAA?
2 A In the EAA, I wouldn't know
3 MR. FITZGERALD: Okay, I think I'll mark
4 this as Exhibit 1.
5 (Exhibit 1 marked as requested)
6 BY MR. FITZGERALD:
7 Q Showing you what's marked as Exhibit 1,
8 I'd represent to you that this is a resume for
9 you that was provided by counsel for Florida
10 Fruits and Vegetable Association in connection
11 with your designation as an expert witness on
12 October 26th, or thereabouts, of 1992.
13 Ask you to take a moment, look through
14 Exhibit 1, tell me if first this appears to
15 relate your professional career, and if it is
16 your most recent version of your CV or resume?
17 A Yes, as far as I can recall.
18 We have a lot -- You know, I use a
19 number of these and change them around as
20 business dictates, but the only thing in there
21 that may be out of date that I probably would
22 have to go back and look up would be the
23 professional associations.
24 I drop in and out of professional
25 associations sort of based on what my secretary
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1 asks me and what kind of mood I'm in, so these
2 may or may not, you know . . .
3 I probably am involved in that many,
4 but I don't know if these are the ones.
5 And I have been in the past so -- or I
6 wouldn't have listed them.
7 Q The current employment from March '91
8 to '93, that's still correct?
9 A Yes.
10 Q At Ed Barber & Associates?
11 A Yes.
12 Q Who is the associates?
13 A I guess it's speculative.
14 I have one professional -- I have a
15 secretary and I have one senior-scientist type
16 employee.
17 Q Who is the senior scientist type?
18 A Dr. Ray Robert.
19 Q What's his background?
20 A He's a Ph.D. in analytic chemistry.
21 He does primarily my data management
22 and data assessment and computer work.
23 Q What's the nature of his involvement
24 directly in your work for the EPD, if any?
25 A He probably has obtained information
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1 and graphed it for me for meetings, or not
2 necessarily graphed it, but explained to me
3 trends and things on the phone, that sort of
4 thing.
5 He probably has provided me with some
6 throw-away type graph things on phosphorus
7 trends, and he also --
8 Q Have you --
9 A -- he also has provided me with
10 information on water quality.
11 He being a chemist, sometimes I'll ask
12 him water-quality questions, if it's beyond what
13 I know.
14 Q Have you ever circulated any of these
15 materials reflecting phosphorus trends or water
16 quality to your clients?
17 A I don't recall.
18 It's possible, but I don't recall.
19 Q Have you ever employed them or
20 circulated them at SAGE?
21 A No, not that I recall.
22 Q Have you retained any of them?
23 A Well, he probably has. I don't know.
24 Q How about you?
25 A It's possible.
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1 I looked through my file, I didn't see
2 any. That doesn't mean something is not in this
3 file.
4 It would be, you know, you'd be talking
5 about a few times; not on a frequent basis.
6 And a lot of times what happens, stuff
7 gets in my briefcase, eventually gets dumped
8 somewhere.
9 Q Did you ever ask Dr. Robert -- it's
10 Robert?
11 A Yes.
12 Q -- to review any of the phosphorus
13 trends analysis conducted by Dr. William Walker
14 in connection with the development of the SWIM
15 plan or the federal settlement agreement?
16 A No.
17 Q What type --
18 A I would be looking at, outside of the
19 structure, coming out of the EAA is the only
20 thing I recall specifically, to see whether it's
21 going up or down, that sort of thing.
22 Q There was a period of time in which
23 Dr. Reckhow of Duke University did some
24 phosphorus trends analysis on behalf of the Sugar
25 Cane, outside of some structures coming out of
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1 the EAA. Were you involved in that?
2 A I was aware that Dr. Reckhow did some
3 statistical analysis and some work, but I met
4 with him a few times, don't recall being
5 specifically involved with him on that project.
6 Q Was that when you were with the Sugar
7 Cane League you met with him?
8 A Yes.
9 Q Did you ever see the results of that
10 work?
11 A No.
12 Q Do you recall which structures he was
13 looking at?
14 A No.
15 Q Do you recall the purpose for which he
16 was conducting that analysis?
17 A No.
18 Q Who was coordinating that for the Sugar
19 Cane League?
20 A I don't know.
21 Q What type of water-quality materials
22 were you having Dr. Robert review for you, or
23 assist you in the review of?
24 A Actually, we were just pulling
25 information together. Been trying to build a
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1 data base on the EAA so that, as various plans
2 come up, for instance those kinds of things that
3 come up in the course of a mediation, that I
4 could analyze the likelihood that those things
5 would work.
6 And we have probably just started that.
7 He's only been working for me for, I
8 don't remember how long, a few months; six months
9 maybe, five months.
10 Q Since you did not directly see
11 Dr. Reckhow's work, weren't supervising it, am I
12 safe in assuming that you don't plan to rely on
13 the work conducted by Dr. Reckhow in forming your
14 opinions in this case?
15 A At the present time I do not.
16 If somebody presented it to me it,
17 would probably make its way into my thought
18 processes. But nobody has approached me to look
19 at that and I haven't planned on looking at.
20 Q Did you work with Dr. Reckhow when you
21 were with the Sugar Cane League on the work he
22 did on Lake Okeechobee?
23 A Yes.
24 Q What was the nature of that work?
25 A To try to do some modeling assessment
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1 to see about the Vollenwider model.
2 Q Could you spell that?
3 A No. Just like it sounds, Vollenwider.
4 It's a man's name.
5 Q I think it's V-o-l-l-e-n-w-i-d-e-r, but
6 I would not swear to it either.
7 A He was looking at lakes, and also
8 Lake Okeechobee, as related to his model for the
9 EPA, the kind of stuff they were going to use
10 across the country; see the validity of the
11 discharges versus concentrations.
12 Q Did you see the results of
13 Dr. Reckhow's work in analyzing the model program
14 employed by the District?
15 A No, I didn't see anything.
16 I talked to him about it.
17 Q What was your understanding of his
18 results?
19 A Very little.
20 Q I know what you mean.
21 A I got the impression that that -- but
22 I left in the middle -- I got the impression he
23 didn't think that the Vollenwider model would
24 properly reflect the response of the lake to the
25 discharge loads.
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1 But I don't know what he finally
2 concluded about what would. We hadn't reached
3 that point when I left.
4 Q I asked you about Dr. Reckhow's review
5 of Dr. Walker's work; that probably is too narrow
6 a question.
7 Have you seen any work by Dr. Reckhow
8 or discussed with him any work reviewing the SWIM
9 plan or any aspect of the EAA rule?
10 A No.
11 Q Are you coordinating any of
12 Dr. Reckhow's work for the EPD?
13 A No.
14 Q Have you had any involvement with Qian
15 Song or Song Qian, depending on whether you're in
16 this country or China?
17 S-o-n-g, second word is Q-i-a-n.
18 A Not that I know of.
19 Q From Duke?
20 A No.
21 Q Graduate student, conducting some
22 modeling on behalf of Dr. Richardson, or actually
23 on behalf of the co-op who's paying him?
24 A No.
25 Now I could be wrong, I may have met
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1 him at some point -- Wait a minute, I've met him
2 I'm pretty sure, and I may have heard something
3 about it, but it wasn't anything that stuck in my
4 mind.
5 I'm not a modeler so I don't retain all
6 of the modeling information that's provided.
7 Q When do you think you met him?
8 A I'm not sure I met him, but I think I
9 might have met him last fall sometime?
10 I'm not sure.
11 Q In connection with your involvement in
12 EAA issues have you had occasion to attend
13 briefings or discussions regarding the Duke
14 Wetland Center work in WCA-2-A or anywhere in the
15 EPA?
16 A Yes.
17 Q When have you done that?
18 A You mean the Duke work for -- on the
19 project, I have. I'm not aware of any -- any
20 experimentation or studies not related to the
21 EAA/EPD project.
22 But certainly I've attended a lot of
23 meetings associated with that project, but no
24 others.
25 Not where they've actually done any
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1 work, no.
2 Q From most of what you said thus far I
3 get the impression your opinions in large base
4 are formulated in large measure based on the
5 fieldwork of others.
6 Do you actually yourself conduct any
7 fieldwork?
8 A No, not now.
9 Q When is the last time you did?
10 A Well, the last fieldwork I did didn't
11 involve this issue, it involved mill, discharge
12 issues, when I was with the League.
13 Q How long ago was that?
14 A Well, up until the time I left.
15 Q So, mid-'91?
16 A Yeah.
17 Q Okay, did you actually conduct field
18 sampling as part of that?
19 A Oh yeah, I have, sure.
20 Q So you have done no fieldwork with
21 regard to the issues in the Everglades SWIM plan
22 challenge?
23 A No.
24 Q Did you assist in drafting any of the
25 petitions in the SWIM plan challenge?
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1 A Well, sure, I was consulted about the
2 FFVA issue.
3 Q Okay, so you have read it?
4 A Yeah.
5 Q Have you --
6 A I don't remember it, but I've read it.
7 Q Have you read the other petitions or
8 amended petitions filed by other petitioners in
9 the --
10 A I've had, you know, a truckload of
11 stuff provided that's been filed.
12 But generally I don't read that stuff.
13 I have enough stuff to read.
14 Q Taking your lead from counsel?
15 How about with regard to the BMP rule
16 challenge, the previous challenge that was
17 partially dismissed and partially withdrawn, had
18 you participated in developing the complaint --
19 or, I'm sorry, the petition in that case?
20 A If we filed one, I'm sure I was
21 involved.
22 Q You don't remember if you did or not?
23 A Mm-mm.
24 Q When is the first time you actually
25 received a briefing or met with people from Duke
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1 University regarding their efforts related to
2 SWIM-plan related issues?
3 And I include here even prior, if there
4 were any prior to you assuming your duties with
5 the EPD.
6 A I guess I don't understand the term
7 SWIM-related issues with regard to Duke. I don't
8 understand that.
9 Q Okay, let's simplify the question.
10 With regard to research being conducted
11 by Duke Wetlands Center for any person or entity,
12 whether the EPD, Sugar Cane League, or others,
13 when was the first time you met with or became
14 aware that Duke was involved in work in the EPA
15 Everglades protection effort?
16 A Well, the first time I was aware of it
17 was when I called Dr. Richardson and talked with
18 him about it, and he came -- and asked him to
19 come down and meet with our environmental quality
20 committee.
21 Q Okay, when was that?
22 A It was in the late eighties.
23 Q And who were you working for at that
24 time?
25 A Florida Sugar Cane League.
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1 Q How did you select Dr. Richardson?
2 A I had been to a symposium in Orlando
3 that was put on by -- and I don't know who the
4 players were; I mean, I don't know what the
5 organizational structure was, but essentially Jay
6 Tabaraj and Ramesh Reddy, and I guess Jay Tabaraj
7 must have invited me.
8 I don't know -- He was with DER at the
9 time; I don't know where he was now. I knew him
10 when I was at DER and we were interested in
11 wetlands.
12 Mostly though we were looking at
13 Lake Okeechobee, and we were interested in
14 nutrients in Lake Okeechobee at that time.
15 So I went to the symposium and, like I
16 said, I don't recall exactly how I was invited,
17 and I happened to go to a -- you just pick out
18 the meetings you want to go to, the lectures you
19 want to see. I happened to pick out one that
20 related to nitrogen phosphorus and carbon uptake
21 in wetlands. I don't remember what it was
22 titled.
23 And so I went there, I heard a man give
24 a presentation that for the first time convinced
25 me that somebody out there understood phosphorus
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1 dynamics in wetlands, after having talked to a
2 lot of people, and after that, later that
3 evening -- and the guy was Curtis Richardson.
4 After that meeting I went up, I saw him
5 at some kind of a mixer-type thing, talked to him
6 a little bit about Lake Okeechobee.
7 He said, well, he didn't do lakes. He
8 talked to me a little bit about phosphorus,
9 nitrogen and carbon, but he didn't do lakes.
10 But I recalled that later when George
11 Wedgworth asked me to go out and find -- first he
12 wanted me to find a cattail expert after the 2-A
13 issue came up, so I put a consultant on it; we
14 came up with some names of people that published
15 on cattails.
16 And I called a few of them and
17 didn't -- I was not impressed, and so I went
18 back to George and told him that I thought what
19 we really needed was a wetlands ecologist that
20 understood phosphorus.
21 He said: Do you know one?
22 I said: I went to a meeting -- I recall
23 I thought he was at University of North Carolina;
24 that's what I told George.
25 But I went back to the proceedings,
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1 flipped through that, found his name, found where
2 he was, called him.
3 That's how he got involved.
4 Q Prior to your involving Dr. Richardson
5 in the Duke Wetland Center in the EPA area, do
6 you know if he'd ever done any fieldwork or
7 research in the Everglades?
8 A He had -- I believe he had his master
9 agree from the University of Florida in big
10 cypress or something. That was my only knowledge
11 about his local experience.
12 I was relying primarily on his -- We
13 went then, looked up all his publications. He
14 was quite published in phosphorus dynamics. He
15 worked on a lot of wetlands up the country.
16 He didn't represent to me that he had
17 done a lot of work in Florida.
18 Q Okay, at that time George Wedgworth was
19 still with the Sugar Cane League?
20 A Right, he was the chairman of the
21 environmental quality committee.
22 Q This was done on behalf of the EQC?
23 A That's right.
24 Q And at that time did the EQC retain
25 Dr. Richardson on behalf of the Florida Sugar
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1 Cane League?
2 A Well, I asked him if, when I called
3 him, if he was interested. We were looking to
4 hire him as a consultant, and I asked him if he
5 did consulting work; some professors do, some
6 don't.
7 He said he did, but his interest was
8 primarily in getting a grant for Duke; that he
9 had just finished up some big project somewhere,
10 I don't know what "big" meant, and that they were
11 between large projects and what he wanted to do
12 was come down and look at a grant for the
13 university.
14 And George had no problem with that.
15 Q When did Dr. Richardson first come
16 down?
17 A I don't remember what year, but it was
18 very shortly after my phone call to him, and he
19 met with -- I don't remember, he met with George
20 at one occasion and I think perhaps the EQC, but
21 I don't remember exactly.
22 Q And after this first visit was
23 Dr. Richardson persuaded to lend his talents to
24 the project or become -- or was he in fact
25 offered a grant or the university a grant to
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1 engage in research in the Everglades?
2 A I'm sure at the time I remember the
3 specific details of how we got him onboard, but I
4 do recall that he was very interested and, based
5 on that, the way we used to do things, I think
6 what we probably did was we told him to come back
7 with a proposal, and then he did that.
8 And probably had a series of meetings
9 to sell all of it, but I don't remember.
10 Q Who would have met with Dr. Richardson
11 for that purpose?
12 A I would have, George would have; then
13 formal league.
14 EQC probably met with him, but I
15 wouldn't think many times.
16 Q Did Dr. Richardson ultimately submit a
17 proposal?
18 A Yes.
19 Q Did you retain a copy of that proposal?
20 A No, when I left the Florida Sugar Cane
21 League I took very little. That was not one of
22 the things I took.
23 Q Do you recall the value of the
24 proposal?
25 A It was seven hundred some odd thousand
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1 dollars a year, and then there was -- he would go
2 up a certain percentage each year, and I don't
3 remember what that percent was.
4 But it was a few percent, six or eight
5 or something, for the whole five years.
6 It was a five-year study with the first
7 year being fairly well defined, I think.
8 Q That study has not been completed as
9 yet?
10 A Right, he's in the last year.
11 Now it's been changed a little bit.
12 They've added a few things, and not the least of
13 which is a couple hundred thousand dollars to the
14 price tag, while I was -- while I was off the
15 project.
16 Q With regard to the current Duke work
17 for the EPD -- no, that was originally with the
18 Sugar Cane League?
19 A That's correct.
20 Q Was that project transferred at some
21 point away from the Sugar Cane League?
22 A Yes.
23 Q When was it transferred?
24 A I think the second year, but I'm not
25 sure.
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1 As soon as we could, we transferred it.
2 As soon as the EAA/EPD was set up and funded and
3 all of the things that were in order to transfer
4 it, we transferred it.
5 Q Why?
6 A That was George's vision of what the
7 EAA/EPD was supposed to do as far as, you know,
8 for one thing: He wanted the EAA/EPD to be
9 the -- to be a sort of a research wing, or at
10 least that was my impression in working for him,
11 trying to guess what he wanted.
12 So we moved it over there because --
13 and also it covered a broader base of people in
14 the ag area.
15 Of course it included the vegetables
16 and the sod people, everyone. It was not simply a
17 sugar cane project.
18 Q Other than changing the name on the
19 check at that point, the printed name, did that
20 have any impact on the project itself? Did it
21 alter the nature of the project?
22 A Not really, because the deal had always
23 been that Duke would do what they wanted and they
24 would not do anything in secrecy.
25 So the fact that it came out into a
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1 sunshine-law operation or operation subject to
2 the sunshine law doesn't change much.
3 Q In about August of '89 Dr. Richardson
4 made a presentation to the Board of the South
5 Florida Water Management District. Do you recall
6 that presentation?
7 A I --
8 Q In the old building?
9 A I think I do.
10 I recall a presentation; whether it was
11 the one in August of '89, I don't know, but I
12 remember a -- he did a couple --
13 Q He was introduced by Nelson Fairbanks,
14 who at the time was I believe president of the
15 Sugar Cane League.
16 A Like I say, he did several. I was
17 there for, I'm sure, whatever presentations that
18 he made.
19 Q Would you have assisted in the
20 preparation for those?
21 A Assisted in the preparation for a
22 presentation? Yes.
23 Q Okay, at that presentation do you
24 recall Dr. Richardson's statement as to the
25 acreage that would be required in order to treat
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1 storm-water runoff from the EAA through the four
2 main structures into the WCAs and Loxahatchee
3 Natural Wildlife Refuge?
4 A I don't recall specifically, but it's a
5 big acreage. I couldn't give you a number.
6 Q Would something in the range of 75,000
7 be in the ballpark?
8 A Yeah, it would be something like twice
9 the acreage that the District proposed.
10 Q Okay.
11 Do you know what the basis was for that
12 rather expansive statement of necessary acreage?
13 A Dr. Richardson has long maintained that
14 the phosphorus take-up rate is much lower on
15 per-unit-area basis than the District has --
16 than the District believes it to be.
17 Q Did you review any of Dr. Richardson's
18 calculations that led him to the conclusion of
19 the necessary acreage prior to his making that
20 presentation to the Board?
21 A No.
22 Q Have you reviewed it since?
23 A No, I would have accepted the numbers
24 as he presented them as being his belief, and
25 that he did the math correctly.
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1 And I'm not a soil scientist, so I
2 wouldn't presume to differ.
3 Q Have your views on that changed since
4 the SAGE meetings you sat through in which
5 Dr. Richardson stated that he was not a
6 statistician and he was unable to explain the
7 basis for reaching settling rate after doing
8 additional work in WCA-2-A of about four meters
9 per year?
10 A Well, I don't think Dr. Richardson
11 knows what the settling rate is.
12 And I don't think Dr. Kadlec knows and
13 I don't think Dr. Walker knows.
14 Q So in your view nobody knows?
15 A That's correct. Not as far as an STA
16 is concerned.
17 Q Well, they were talking about settling
18 rates in WCA-2-A, were they not?
19 A Yeah, you know, Dr. Richardson and
20 Dr. Reddy, as I recall the presentations aren't
21 that far apart on what the accretion rate is.
22 It's a matter of throwing an outlier
23 out or something like that, which I think is a
24 judgment call on the part of the researcher.
25 There again, I wouldn't say which one
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1 is correct or one of them is incorrect, that's
2 simply a choice how you treat the data.
3 Q In fact, isn't it true based on your
4 understanding from the same meetings that Ramesh
5 Reddy, C. J. Richardson and the data from all
6 sources on WCA-2-A utilized the calculations by
7 the District; that the underlying data is
8 virtually identical, very very little difference
9 in the numbers; really comes down to outliers as
10 you point out; so the fundamental data, there's
11 substantial agreement; and in fact SAGE came to
12 that conclusion, did it not?
13 A SAGE came to which conclusion?
14 Q That there was no significant variation
15 in the underlying data.
16 A Between Ramesh Reddy and Curtis
17 Richardson?
18 Q Mm-hmm.
19 A As I recall it, that's true.
20 Q The primary difference was in the
21 calculated settling rate in WCA-2-A based on that
22 data?
23 A And the treatment of the data.
24 Q Do you believe Dr. Richardson's
25 statement that he could not explain the
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1 derivation of his number of approximately four
2 plus some fraction as the calculated settling
3 rate?
4 A I don't recall that.
5 Q Do you recall him being asked that?
6 A No.
7 There was a lot of stuff said so,
8 because I don't recall it, doesn't mean it didn't
9 happen.
10 Q Do you recall SAGE having to request
11 that Dr. Richardson's methodology be submitted
12 subsequently in writing so that they could
13 understand how he got to the four, because he was
14 unable to explain it to them at that time?
15 A I don't recall whether he was able to
16 explain it or not.
17 Seems like I do recall that he was
18 asked to submit something in writing as to how he
19 made his calculations.
20 Q He never did that, did he?
21 A I don't know. I never saw it as a
22 member of SAGE.
23 Q As a member of SAGE did you see in the
24 alternative calculations submitted by one of SAGE
25 members, Dr. John Davis of Environmental Services
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1 Permitting Inc., purporting to lay out the
2 mechanism used by Dr. Richardson to reach that
3 number?
4 A I recall seeing that.
5 Q So Dr. Richardson in fact never
6 submitted under his own name his calculation
7 method?
8 A If he did, I do not recall ever seeing
9 it.
10 Q Did you review the calculation method
11 submitted by Dr. Davis on behalf of -- or
12 purporting to be Dr. Richardson's method?
13 A I glanced over it, but I did not try to
14 take the time to see if his -- if I would agree
15 with his calculation or not.
16 Q Okay, would you agree that the
17 calculation of the settling rate in WCA-2-A is a
18 critical issue in the context of the SWIM plan in
19 determining the validity of some of the
20 fundamental assumptions in the SWIM plan,
21 including acreage for STAs?
22 A Please restate that question.
23 Q The calculation of the apparent
24 settling rate is a critical component of sizing
25 the STAs as the SWIM plan is currently written,
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1 is it not?
2 A As the project is proposed to be done,
3 which I wouldn't do it that way, but if you're
4 going to do the project the way they proposed to
5 do it, the settling rate is a critical number.
6 Q And the work done by Burns and
7 McDonnell, make sure I get the right one,
8 regarding STA design also necessarily relies for
9 its sizing calculation and certain other
10 parameters on the calculation of the settling
11 rates for phosphorus?
12 A On a calculation settling rate, that's
13 correct.
14 Q So that is a critical issue in the
15 context of the SWIM plan and SWIM plan challenge?
16 A If you're going to determine the size
17 of the STAs based on the settling rates, based on
18 a theoretical settling rate that you've gotten
19 through work that you've done in 2-A, either
20 through modeling or through some other kind of
21 sampling like Reddy and Richardson did, then it's
22 a critical number.
23 Q Why are you on SAGE?
24 A Why am I on SAGE?
25 Q Yes.
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1 A Florida Fruit and Vegetable Association
2 asked me to represent their interests.
3 Q That's the scientific advisory group on
4 the Everglades?
5 A That's correct.
6 Q Which task is to provide technical
7 input to the South Florida Water Management
8 District?
9 A That's correct.
10 Q On issues related to the Everglades
11 restoration?
12 A So far.
13 I guess they could expand that.
14 Q And such other things they request?
15 A That's correct.
16 Q Such other duties as assigned?
17 That's in my job description.
18 That being the case, why, on such a
19 critical issue, did you not go through the
20 exercise of determining if the calculations
21 represented by John Davis to substantiate
22 Dr. Richardson's settling, apparent settling rate
23 number, I think he referred to that, why did you
24 not go through that exercise?
25 A Because the process that they're going
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1 through is not likely to lead to the truth.
2 The settling rate issue is one where
3 they've, whether it's John Davis or
4 Dr. Richardson or Dr. Walker or any of them, they
5 are trying to design something and avoid the
6 necessity of actually going through some kind of
7 pilot test and figuring out what kinds of
8 settling rates you can get out of what design,
9 and then designing the STA accordingly.
10 So any kind of theoretical exercise in
11 number development is going to change, and at
12 some point, the only time you're ever going to
13 stop them -- stop the process, is when you
14 finally just pick almost randomly one of the
15 numbers.
16 That number has changed from eight, now
17 I think they're designing it based on ten point
18 something; not because Dr. Richardson suggested
19 it or anything. I don't know why they've changed
20 the number.
21 They've changed the number. I don't
22 disagree with changing it, but what they're
23 trying to avoid is avoid a pilot figure, an
24 in-field, actual, honest-to-God engineered STA
25 pilot plan to see what it does, what they can
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1 make it do.
2 And those will be the real numbers.
3 That's why I didn't waste my client's
4 money on a lot of spinning my wheels and doing
5 numbers.
6 Q Is it fair to say then that your
7 concern is that the derivation of the number,
8 whichever of the several you choose, would not be
9 translatable to a constructed managed wetland?
10 A Right.
11 Q That, while they may come up with a
12 number that matches pretty closely the observed,
13 or a model that matches the observed deposition
14 or settling rate rather in the waters
15 conservation area, it is not necessarily
16 translatable in a constructed wetland that's
17 managed differently?
18 A Well, not only that, the process of
19 trying to come up with that number for the
20 conservation area is a very difficult one, and
21 has lots of gaps in it, and the probability of
22 correctness isn't that great.
23 And so they'll wind up with a range of
24 probability, of knowing what that number, what
25 they think that number is.
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1 Then, when you translate that into hard
2 engineering out in the conservation areas
3 themselves, I mean in the EAA itself, as an STA,
4 there may not be a relationship, because they
5 don't seem to know all of the mechanisms that --
6 the chemical and biological mechanisms very well
7 that will be responsible for uptake and how the
8 STA itself would affect those and what actually
9 happened in 2-A over the last twenty years.
10 There's too many unknowns, at least to
11 this point, and I've maintained all along I'd
12 rather see them go forward with a viable pilot
13 project and make those determinations based on
14 that pilot project.
15 Q Let's see if we can bring that into
16 some fairly specific things.
17 There are no STAs, to your knowledge,
18 or the equivalent managed constructed wetland for
19 the purposes of removing phosphorus in peat soil
20 in ecosystems currently?
21 A Well, I'm aware of the wastewater
22 wetland systems that Dr. Kadlec -- I'm not as
23 well aware as say Dr. Kadlec, but I've looked at
24 some of the terms provided to SAGE on that, so
25 there are wastewater wetland systems around that
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1 he apparently believes, or at least based on what
2 he said to SAGE, a better indicator than if you
3 actually built a pilot project.
4 I don't understand that.
5 Q Are you aware of anything better as an
6 indicator than the ones he tried to identify,
7 subject to the limitations he put in the --
8 You're familiar the Kadlec and Newman report?
9 A Yes.
10 Q Counsel cited it as one of the reports
11 that you were up on?
12 A Yes.
13 Q At least I think he did.
14 A I'm familiar with it.
15 Q Maybe now not, but you're familiar,
16 that was circulated around the District; I mean,
17 that they identified certain wetlands they
18 thought were most applicable to our situation
19 here in the Everglades, but they warned that
20 these are not the Everglades per se?
21 A That's correct.
22 Q So they're only indicators, perhaps?
23 A That's right.
24 Q You would agree with that? You're not
25 aware of anything better than those as
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1 indicators, subject to the limitations they have?
2 A No, there's a better site, it just
3 hasn't been tested. That's the ENR project.
4 Q We'll get to the ENR project.
5 Let's do it now. What's the ENR
6 project?
7 A Okay, that's the old Knight tract,
8 K-n-i-g-h-t tract, that was a farm that Sam
9 Knight had under lease from the State of Florida
10 for years, about thirty-seven hundred acres, and
11 it's being developed as a parcel that would be
12 used in some kind of a flow-way with parts of it
13 being considered for flow-way experiments.
14 Q Okay, and part of that is to determine
15 the nutrient uptake capability of Everglades
16 wetlands?
17 A True.
18 Q That project is, what, thirty-four
19 hundred acres roughly?
20 A I was under the impression it was
21 thirty-seven, but maybe net acres.
22 Q Well, in the 3,500 range anyway.
23 That is not yet on-line?
24 A No.
25 Q Won't be on-line, won't be ready to
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1 flood until July of this year, if it stays on
2 schedule?
3 A As far as I know.
4 Q Okay, based on what you told me earlier
5 about how long you'd want to look at BMPs, I
6 assume you'd want to look at a STA, ENR-type
7 project at least a full hydrologic year before
8 you -- or perhaps longer --
9 A Longer.
10 Q How long?
11 A It's hard to say.
12 What I would look for would be some
13 kind of stabilization. As long as the numbers
14 are bouncing around, you'd figure the thing
15 stabilizes when you started getting more
16 consistent numbers, and it would be -- you'd
17 figure you probably reached a point where you
18 could say, well, these numbers are probably going
19 to accurately reflect the efficiencies over a
20 long term.
21 That is when you'd stop with the test
22 part of it.
23 Q You're aware that there's some
24 controversy even over the ENR because of its
25 size; that any numbers derived from any ENR might
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1 not scale up to full-size STAs, are you not?
2 A That's hard for me to believe, but I've
3 heard that.
4 Q But there are people on SAGE that
5 believe that, or at least have discussed it?
6 A Well, you know, I think that's -- I
7 agree that there's a -- if you had a very small
8 plot of a few hundred acres or something, that it
9 would be very difficult to say: This is going to
10 react like an STA.
11 But that particular project is, you
12 know, a big percent of the acreage of the final
13 proposed STAs, and I mean, you're talking about
14 maybe doubling the size, then you have a
15 full-sized STA, one of the STAs.
16 So it's hardly a small pilot plant that
17 might not be representative. It's an STA-size
18 facility.
19 Q Now if an ENR-type project was run for
20 a substantial period and a good monitoring
21 program in place, good data points developed,
22 that would start to approach the more ideal
23 situation in your view for coming up with correct
24 design parameter numbers for STAs?
25 A Yes.
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1 Q Ideally you would want to --
2 A If you were going to do STAs, that's
3 what you would do.
4 Q Okay, the Reddy testing in WCA-2-A and
5 the Duke testing, the whatnot in WCA-2-A, are the
6 basis for the current calculation of the settling
7 rates, is that correct?
8 A They're the -- as I understand the way
9 it's done, that and the water-quality work
10 combined gives you the settling rate.
11 Q Is there anything better available?
12 Assume for the sake of this question
13 that you're going to build STAs or something like
14 an STA; is there any better available data set
15 that ought to be used to do that than Ramesh
16 Reddy and Dr. Richardson's --
17 A You'd be -- Well, as far as the
18 sediment analysis, I don't know of any. And the
19 sediment phosphorus quantities.
20 As far as water -- the water-quality
21 information is concerned, I don't know of any.
22 I would hope there's better because,
23 from what I've seen of it, what they have, may
24 not be sufficient.
25 But I don't know what's out there,
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1 what's available.
2 Q You said that in part Dr. Robert and
3 you at your firm were putting together a data
4 base for the EAA or EPD?
5 A Right.
6 Q And you were looking at water quality
7 and you've been working in the water-quality area
8 directly and indirectly at least since '91?
9 A That's correct.
10 Q And from the nature of your consultant
11 work I would assume that you've been looking at
12 water-quality issues considerably before 1991?
13 A Mm-hmm.
14 Q Would you in fact not be aware through
15 your participation in the BPM workshop, the
16 development of the SWIM plan, the public process
17 it's going through, your participation in SAGE,
18 your consultations with Dr. Richardson and other
19 sources, if in fact a better data set existed?
20 A Well, I can -- I have -- I don't know
21 what's available. I don't know what the Florida
22 Sugar Cane League has, and I don't know what the
23 federal government has and I don't know what has
24 been protected in this process by the state
25 agencies under any kind of attorney-client
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1 privilege.
2 So I can't -- I don't know what I don't
3 know. And I don't know what's available that I
4 don't have.
5 Q Do you have any reason to believe that
6 the Florida Sugar Cane League has a water-quality
7 data set that's superior for the EPA to the
8 available public data sets through the Army Corps
9 of Engineers, EPA, DER, South Florida Water
10 Management District, or any other entity?
11 A I don't know what they have.
12 Q Do you have --
13 A I have absolutely no knowledge.
14 Q That's the question: Do you have any
15 reason to believe they have such a thing?
16 Not what you don't know, do you have
17 any reason to believe they have a separate
18 water-quality data set that they have not
19 publicly shared?
20 A I don't know.
21 Q So the answer is no, you have no reason
22 to believe they do?
23 A I have no knowledge. If they have it,
24 I have no knowledge.
25 MR. FITZGERALD: I was just going to go to
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1 eleven, then break for ten, fifteen minutes
2 anyway. Why don't we take a break now?
3 (Short recess)
4 BY MR. FITZGERALD:
5 Q Picking up, we were discussing the
6 settling rates and issues concerning that and the
7 view that SAGE had looked at it.
8 I assume then you did not concur in the
9 adoption by SAGE of the -- what was it called?
10 I'd call it a motion, but they didn't -- a
11 resolution or a statement to the Board indicating
12 their view that the settling-rate coefficient as
13 calculated for WCA-2-A was a reasonable number
14 and a reasonable basis for design of an STA?
15 A That's correct.
16 Q Okay, who else did not concur in that,
17 or voted against it, if you recall?
18 I know the chairman abstained.
19 A The chairman abstained. I don't think
20 John Davis voted for it.
21 And I don't think Earl Shannon voted
22 for it.
23 Q Who does Mr. Davis represent on the
24 committee, as you indicated that you're there at
25 the committee?
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1 A U. S. Sugar Corporation.
2 Q Not the Sugar Cane League?
3 A No.
4 Q Who does Mr. Shannon represent?
5 A The Sugar Cane Growers Cooperative.
6 Q Does the Sugar Cane League have a
7 representative per se?
8 A No.
9 Q Is there an additional industry-related
10 representative on --
11 A Yes, the Flo-Sun has a representative
12 on there.
13 Q Who is that?
14 A Presently it's Peter Rosenthal.
15 Originally it was Paul Larson.
16 Q Do you know why they changed?
17 A They hired -- Flo-Sun hired Peter as
18 their, I don't know what his title is, but as
19 their environmental person; then he was
20 appointed.
21 Q Is Paul Larson still participating in
22 SAGE?
23 A No.
24 Q Do you know why? Was he just -- Or
25 because he was supplanted by --
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1 A I assumed it was because they hired
2 Peter, and that was the slot they wanted him in.
3 Q So essentially then the industry
4 consultants all voted against it?
5 A Yes, as far as I can recall.
6 Q We were at a point where I was asking
7 about your awareness of this superior data set or
8 better data to conduct that kind of analysis, the
9 settling rate calculation or an empirical model.
10 Are you aware of any better data set
11 than the data set employed by the Water
12 Management District or Dr. Walker, or even
13 Dr. Richardson in attempting to conduct that
14 analysis?
15 A I'm not. I have not seen any.
16 And I don't know -- I don't have any
17 knowledge of any.
18 Q If there were a better set or a better
19 set came to light, you would certainly want it to
20 be used?
21 A Yes.
22 Q In your estimation would a superior
23 data set potentially emerge from the ENR project?
24 A Yes.
25 Q How long would you expect that to take?
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1 A I don't know. Like I said before, you
2 would run the ENR as -- it would be a different
3 process: You would run the ENR as an experiment
4 and see what numbers you actually got, rather
5 than some computed number based on other
6 information.
7 You'd have an input and an output
8 figure; you'd have an acreage figure, and it
9 wouldn't even be, wouldn't be very difficult at
10 all to figure out how much was staying in the
11 system.
12 Q But in the first year or perhaps two
13 years you would expect some skewing in the
14 results, in your data points, because of
15 disturbance due to construction, the initial
16 flooding, the filling-in by vegetation, whether
17 you did sod planting or you allowed voluntary
18 recruitment?
19 A Right, based on the information that
20 I've received, what I've heard, I would
21 expect -- I would be surprised if you didn't
22 have a high degree of variation the first few
23 years.
24 Q Is there general agreement on that?
25 A As far as I know.
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1 Q Okay, you haven't heard anybody at SAGE
2 or the District say: Oh, no, you can take this
3 to the bank the day you flood it?
4 A No.
5 I mean, it's certainly possible, but it
6 would not be expected, I don't think, by anyone.
7 Q Okay.
8 If in fact that's correct then, it
9 could be several years before we begin to get,
10 you know, unskewed, reasonably reliable data
11 points out of an ENR; and recognizing the
12 Marjorie Stoneman Douglas Act has time frames for
13 certain activities to begin and certain steps to
14 be accomplished -- accomplished, has the District
15 then not relied on the best available scientific
16 data to conduct its analysis and begin the
17 restoration program?
18 A I don't think they've relied on the
19 best available process.
20 Q Okay, let's break the question down
21 then.
22 Assuming that one is going to use an
23 STA-style wetland treatment system, have they
24 relied on the best available data for the design
25 of that type of system?
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1 A I don't know, because I don't know all
2 of the information that they may have.
3 I don't know whether or not -- what the
4 thought processes were that didn't lead them,
5 once they were aware they were going down this
6 path, to not going out and collecting a lot of
7 water-quality information and trying to affirm
8 this in the field, more than apparently they have
9 or more than I'm aware that they have.
10 I mean, if I had to fault them, it
11 would be for not -- not going out and trying to
12 shore their theories up and their computer
13 analysis up with more hard data and information.
14 Q Now didn't they do that by
15 incorporating Dr. Richardson's more recent works
16 his, the three Duke transects?
17 A As far as the soil phosphorus analysis
18 work, yes.
19 Q And the water-quality work?
20 A Well, the water-quality work that he's
21 doing could have been improved upon with a bigger
22 budget.
23 They could have taken more samples and
24 so forth, yes.
25 Q Are you aware of the R-squared concept
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1 in regression modeling?
2 A I'm just vaguely, generally. I'm no --
3 I'm no modeler, and I've had a couple of courses
4 in statistics in college.
5 Q Do you feel competent to evaluate the
6 fit of a model to a data set?
7 A No.
8 Q Okay --
9 A No, I would ask Dr. Robert to do that
10 for me, if I chose to do that.
11 And I have not done that.
12 Q So you've never analyzed the fit of
13 Dr. Walkers's models to the up eutrophic --
14 A Not at all.
15 Q You just understand generally, probably
16 like I do, that the R-square value gives you a
17 measure of the fit?
18 A Right.
19 I understand as much as two courses in
20 college statistics would carry me.
21 Q Then we understand an equal amount.
22 Doesn't carry very far in this. Doesn't carry me
23 very far.
24 On behalf of the EPD are you causing
25 anybody to do that kind of analysis of
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1 Dr. Walker's work?
2 A No, the EPD to my knowledge had not
3 engaged in anything that would try to refute
4 anything Dr. Walker's done at all, as far as
5 coming outside of that cost center, coming before
6 that Board, or being a part of that process.
7 Q Who at the EPD is coordinating
8 Dr. Richardson's water-quality work?
9 A Well, as far as the whole project is
10 concerned, I am.
11 Q Okay for what purpose was
12 Dr. Richardson taking water samples in the
13 Hillsboro Canal since the start of this year,
14 start of calendar '93?
15 A I don't know what that related to as
16 far as this project is concerned. That's not
17 anything he's discussed with me.
18 Q Did you ever discuss with
19 Dr. Richardson sampling within Loxahatchee
20 National Wildlife Refuge?
21 A I've discussed it with him. He was
22 very interested at one point to sampling there,
23 because I think he wanted to compare
24 Loxahatchee's uptake rates with the uptake rates
25 that I'd found in 2-A and in other places.
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1 Q Where else has Dr. Richardson examined
2 uptake rates?
3 A I know he did on the flight track back
4 several years ago; not as a part of this project
5 though. But I know he did that.
6 Q Was that data made public?
7 A I don't know. That was information
8 that was done possibly for the Knight family, and
9 I'm only vaguely aware of it because I've heard
10 him discuss it a few times.
11 Q In what meetings or groups did he
12 discuss that?
13 A He probably discussed it before the EQC
14 back -- some time back, because he -- that was
15 all of -- a part of the -- the process where
16 Mr. Knight was trying to retain the farming --
17 his farming interest on that tract, back when
18 they were fighting it out before the Governor's
19 cabinet, and I believe Dr. Richardson did some
20 sampling.
21 It's my recollection that he did some
22 sampling for them out there on that property.
23 Q Do you know what the results of that
24 was in terms of phosphorus uptake?
25 A I don't remember. I think he found --
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1 he felt like the levels were very high, the
2 phosphorus levels in the soil were pretty high.
3 And I think he may have concluded that
4 the potential uptake rate for that particular
5 piece of property at that time was pretty low.
6 Q Okay, about two -- Well, when were you
7 discussing with Dr. Richardson testing
8 Loxahatchee in order to verify or determine the
9 relative uptake rates in comparison with WCA-2?
10 A It's been a long time ago.
11 Q Since you went with the EPD?
12 A No.
13 Q Before that?
14 A Yes, back when --
15 Q You were with the Sugar Cane Growers?
16 A Yes, the first year of the study he was
17 very much into 2-A's uptake rates. That was a big
18 part of that first year: that kind of analysis.
19 And he talked at that point about
20 liking to get into Loxahatchee, and I believe
21 that was subject to some of a -- he would make
22 requests to get in, they would turn him down,
23 that, so forth.
24 Q That was during the pending litigation
25 between the federal government and the two state
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1 agencies?
2 A I think so, yes.
3 Q Have you discussed the subject with him
4 since then, since going with the EPD?
5 A I only discussed with him when he -- it
6 was something broke in the paper that he was
7 threatened with arrest, and samples confiscated
8 or something like that, and I called him and
9 asked him about it, and that was -- but that was
10 an after-the-fact discussion. I didn't know
11 before the fact that he was doing anything.
12 Q Did he tell you samples were
13 confiscated?
14 A I may have read that in the paper. I
15 don't remember.
16 Q Did he tell you where he was when this
17 incident occurred?
18 A He just said he was on the -- I think
19 he said he was on a levy and he was taking --
20 that -- water samples from one of the canals.
21 But I didn't ask him any serious
22 questions about it.
23 Q Did you ask him if he was doing work at
24 that time for the EPD?
25 A No.
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1 Q Were you aware that, before the hearing
2 officer in this case, attorneys for the Florida
3 Sugar Cane League claimed that anything
4 Dr. Richardson was doing at the time was on
5 behalf of the EPD?
6 A Well, it could have been. I mean, he
7 has a budget of so much money and he sends us,
8 you know, his proposal, and we examine them.
9 But we do not interfere in any way in
10 his research.
11 So, if he saw necessary to take a water
12 sample or a series of water samplers, as long as
13 it was in the scope of his budget, he doesn't
14 have to clear that with me or anyone.
15 Q Are his proposals detailed to the point
16 it would say water-sampling at S-10-D-Upper?
17 A No, generally they're not. They
18 describe what he intends to prove or disprove;
19 you know, what his hypotheses is, and some
20 general information and his study design and then
21 a general budget.
22 Q When is the last time he submitted one
23 of those?
24 A He would have submitted one -- I don't
25 know. He submitted the original, and then I
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1 don't know what happened when I made the
2 transition from the Sugar Cane League.
3 But he has sort of, as I understand it,
4 been updating what he's been doing, considering
5 it all under his original contract.
6 And at the end of his annual report he
7 will have an outline of what he's going to do
8 next; then, as I understand it, he will submit a
9 budget; they will discuss it.
10 Now that's not exactly what's going to
11 happen this year, now that I'm onboard, but
12 that's what I'm given to understand what has been
13 going on.
14 It will be more detailed information on
15 this year's.
16 Q Who has all those documents?
17 A Charles Shoech is the attorney for the
18 EAA/EPD, and any official records of the EPD
19 would be in his office as far as I know.
20 Q And the EPD is a quasi-state agency?
21 A Yes Sir, it's a special district, as I
22 understand it, set up by the Florida Legislature.
23 Q So those documents could be received by
24 anybody who filed a public-records request?
25 A I'm no expert there, but as far as I
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1 know, that's true.
2 Q You know of no reason why there would
3 be any particular --
4 A I know of no reason.
5 Q You don't have copies of any of that?
6 A Any of which now?
7 Q Dr. Richardson's study proposals and
8 the updated, detailed study proposals regarding
9 the Duke work and budget.
10 A I don't have anything from last year
11 and nothing has been put together for this year.
12 But we have a meeting coming up where
13 we would do that -- where I would ask him for
14 that, let's put it that way.
15 Q What was the difference between your
16 duties as director of environmental relations
17 with the Sugar Cane League, '84 to '88, and being
18 vice-president of environmental relations January
19 '88 to March '91?
20 A That primarily had to do with the
21 position in the corporate hierarchy to obligate
22 funds, and the technical aspects of the job
23 really didn't change.
24 Q The state --
25 A I could sign, I could sign checks, and
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1 it was -- I was on the various bank accounts,
2 things like that.
3 Q The state-of-the-art air-monitoring
4 network described for the period '84 through '88
5 for continuous monitoring of the ozone and sulfur
6 dioxide, was that for emissions from mills?
7 A Right.
8 Q Tied into like, you know, the air
9 quality; smokestack scrubbers, all that stuff?
10 A Yes, one of those we just did, I don't
11 remember which one we had to do, which one we do
12 voluntarily, but they were primarily used -- or
13 if we thought we needed them, they would have
14 been used for the mills.
15 Q Is the Fruits and Vegetable Association
16 participating in the entry and testing program in
17 Loxahatchee National Wildlife Refuge under the
18 hearing officer's order of December 2nd, 1992,
19 the testing program in the refuge?
20 A Not that I know of.
21 Q Are they planning to participate in the
22 testing program in the National Park which begins
23 this month or next month?
24 A I've not been instructed to be involved
25 in that.
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1 Q Do you know if Dr. Richardson is aware
2 of the fact that the three petitioner groups are
3 authorized and in fact one way or another in the
4 process right now of collecting data in
5 Loxahatchee and have done so for three months?
6 A I don't know if he knows that or not.
7 Q Is the EPD or your current client here,
8 the FFVA, doing any macrophyte studies in the
9 Everglades ecosystem?
10 A No.
11 Q How about paraphytin studies?
12 A Well, only insofar as what Curtis
13 Richardson is doing, okay? There are another no
14 other macrophyte or paraphytin studies other than
15 what's in Curtis' domain.
16 Q That's part of his response study that
17 you're referring to?
18 A Yes.
19 Q Is he doing anything other than that?
20 A I don't know. He hired a
21 Czechoslovakian to do the paraphytin work.
22 I believe he was a Czechoslovakian. I
23 can't remember his name.
24 Q Yon Reses?
25 A I wish I knew.
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1 Q So the court reporter could spell it --
2 A I don't know. I think.
3 Q This is the Yon back over in
4 Czechoslovakia right now and can't be deposed, I
5 assume?
6 A I assume. I didn't know he was not in
7 the country.
8 And then whatever work that Russ Raider
9 did. I don't know whether -- I don't know how the
10 macrophytes played in his particular project. He
11 was mostly in trophic levels.
12 Q You were speaking earlier somewhat in
13 jest about your college background in statistics
14 and math. Were those undergraduate degrees at
15 West Florida for your bachelor's course, or for
16 your master's course?
17 A I took a statistics course in my
18 undergraduate program; then I took one
19 graduate-level statistics course.
20 It was an experimental design and
21 analysis course.
22 Q In either your bachelor or your
23 master's courses did you take any specialized
24 course in wetlands ecology?
25 A Well, I took quite a few ecology
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1 courses. Wetlands were part of those.
2 Q Any specifically just directed at
3 wetlands?
4 A Most of the ecology courses that I took
5 were -- had a wetlands component.
6 But I would say for the most part they
7 were fresh-water, --
8 Q Es --
9 A -- lake-type systems.
10 Q Did you take any that dealt with
11 estuarine systems?
12 A Yes, I've had some estuarine work.
13 I've had more wetlands and estuarine
14 working experience than I had --
15 Q Course work?
16 A -- Course work. Course work was
17 primarily in lakes and rivers and streams. Some
18 oceanic course work, particularly in fish, things
19 like that.
20 I took one that was entirely saltwater
21 graduate level fish course.
22 But primarily then I worked a lot in
23 wetland systems when I worked for DER, and
24 estuarine systems.
25 Q What was the focus of your master's?
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1 A In nematodes. I worked on nematodes.
2 Q I'm sure I know what nematodes are.
3 A They're little worms.
4 Q And where did you do your fieldwork for
5 that?
6 A In and around northeast Florida.
7 It was actually, I did more, it was a
8 parasitic-type study.
9 Q Birds?
10 A No, I was doing higher animal.
11 Q Nematodes do affect birds though?
12 A Oh, yes.
13 Q Big problem for birds in the
14 Everglades?
15 A Yes.
16 Q Did you do a thesis for your masters?
17 A Yes.
18 Q What was the topic?
19 A It was the nematode infestation in a
20 wild hog population.
21 I think that I captured, which I don't
22 know how relevant it was, I think I got all of
23 them, just about, after that.
24 At that time I thought I wanted to be a
25 veterinarian.
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1 Q For your master's did you have a
2 committee or panel that you had to defend your
3 thesis?
4 A Yes.
5 Q Who was on that panel?
6 A My major professor was Dr. Sneed
7 Collard; and I had one statistician on the panel,
8 I don't remember his name; Dr. Clayette;
9 Dr. Winter.
10 I don't remember who else.
11 Q Okay, you said that your master's or
12 graduate-level statistic course was dealing with
13 design of --
14 A Right.
15 Q -- test systems, whatnot?
16 Did your thesis work involve any
17 modeling, mathematical modeling?
18 A Mm-mm.
19 Q Statistical?
20 A Some statistical analysis, but not any
21 mathematical modeling.
22 Q In the course of your work with Florida
23 DER did you do any statistical modeling or
24 evaluation of mathematical models?
25 A No, we participated in -- I did a lot
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1 of sampling and the support work for the modeling
2 that was done for wastewater treatment plants,
3 but the modeling was done by Tallahassee.
4 Q And you were with DER from l976 through
5 l984 in various positions?
6 A Yes.
7 Q The two most recent listed is Northeast
8 District Enforcement Chief and District Biologist
9 Supervisor, seemed to involve north Florida,
10 north of Lake Okeechobee?
11 A That's correct.
12 Q Did any of that work involve the
13 Lake Okeechobee drainage areas, either the
14 Kissimmee or south?
15 A No.
16 Q The '76 through '79 position as
17 environmental specialist, dredge and fill?
18 A Right.
19 Q What geographic area did that
20 encompass?
21 A The northeastern fifteen counties.
22 Q So it was the same as the northeast
23 district?
24 A That's correct.
25 Q So prior to leaving and going with the
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1 Sugar Cane League in l984, had you done any
2 fieldwork in the Everglades ecosystem --
3 A No.
4 Q -- at all?
5 Had you done any course work while you
6 were at the University of West Florida that
7 involved the Everglades system?
8 A Not the Everglades, no.
9 Q What is an environmental specialist,
10 dredge and fill?
11 A Well, the dredge-and-fill program is
12 the wetlands construction evaluation program, or
13 was, I don't know what they call it now, for DER
14 for the wetland-disturbance-type projects or
15 displacement projects that people propose under
16 the dredge-and-fill program.
17 They would apply for permits.
18 Q As part of that were you required to
19 develop a familiarity with the Florida
20 water-quality standards?
21 A Yes.
22 Q What standards were applied in
23 evaluating dredge-and-fill permit applications at
24 that time?
25 A Well, you had two -- let's see, I
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1 hadn't thought about that in years.
2 I would be concerned in two areas, but
3 as far as the water-quality standards are
4 concerned, it would be with any discharges or any
5 water-quality discharges during the construction
6 phase or later, operation phase, if you want to
7 call it that, of a project, or any water-quality
8 standards that -- problems that might occur as a
9 result of the physical alteration of the wetland
10 system, either displacement or, you know,
11 dredging things out, making them deeper; how that
12 would affect things, changing the shoreline
13 dynamics.
14 Those were the primary water-quality
15 concerns.
16 Secondly you'd be concerned about
17 leachate from fill, stuff like that.
18 Q Did you look at things like turbidity?
19 A Sure.
20 Q What other specific factors or criteria
21 would you look at?
22 A You'd look at DO as a big one.
23 Q Dissolved oxygen?
24 A Dissolved oxygen.
25 Turbidity, you'd have to kind of assess
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1 what the property was going to be, any kind of
2 runoff problems that could come from -- parking
3 lots, in those days you still had lead in
4 gasoline, you might be concerned about that;
5 pesticide; any secondary impacts as well.
6 Q Back then had Florida done a system of
7 classifying its waters?
8 A Yes.
9 Q What was the system at that time? Was
10 it the same as today?
11 A Yes.
12 Q Have there been material changes?
13 A I don't know that there's been any
14 changes.
15 There may have been changes in the
16 standards, but you had the same basic
17 classification of waters.
18 Q Okay, what's a Class 3 water?
19 A That's a general recreational, and most
20 of the water in the State of Florida is Class 3.
21 It's just the general water-quality standard.
22 Q Are there numerical standards for
23 constituents of discharges into Class 3 waters?
24 A Yes.
25 Q For all --
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1 A Well, there's a list of them. I don't
2 recall the specifics of each one of them, but --
3 Q How about for nutrients?
4 A There's a narrative standard for
5 nutrients that I'd have to read the exact
6 verbiage, but it deals with ecological
7 imbalance. It's an ecological imbalance type
8 test.
9 Q Does it in fact preclude the discharge
10 of waters containing nutrients, including --
11 Well, would you include phosphorus as a nutrient?
12 A Yes.
13 Q That would preclude discharge of waters
14 into Class 3 waters that contained nutrients
15 sufficient to cause an imbalance in native fauna
16 and flora, is that roughly what the standard
17 says?
18 A Well, it would require a permit and a
19 determination of that, yes.
20 Q To your knowledge, at the time you went
21 with the Florida Sugar Cane League, were there
22 any permits for the discharge of storm water from
23 farms in the EAA to the primary canals of the
24 South Florida Water Management District?
25 A Not with DER, no.
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1 Q Was there with anyone else?
2 A Well, they had permits in various
3 kinds, some were different with others, with the
4 Water Management District.
5 Q But those permits were essentially
6 related to water usage, were they not, and they
7 did not address water-quality issues whatsoever?
8 A They were water-usage permits, and I'm
9 not aware, some of them predated -- the farms
10 predated water quality or issuance of other
11 requirements to obtain permits in the South
12 Florida Water Management District, at least so I
13 was told.
14 And so they may have authorizations to
15 discharge, not have permits. I wouldn't know
16 that.
17 Q It was not your understanding while at
18 DER or thereafter that a grandfathering situation
19 was operating in the EAA that would preclude the
20 necessity of a discharger to waters of the state
21 from having a DER permit, was it?
22 A Say that again?
23 Q When you were at DER did you ever
24 encounter a situation where someone could be
25 grandfathered from meeting the discharge permit
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1 requirements?
2 A There may have been cases where someone
3 was not required to have a permit, but that
4 wouldn't necessarily mean they weren't required
5 to meet water-quality standards.
6 Q So if they were grandfathered, that
7 might relieve them of the obligation of going
8 through the permitting process, but they still
9 needed to meet Florida water standards?
10 A Right.
11 Q What is the difference between a
12 water-quality standard and a criteria, if there
13 is one in your mind?
14 A I don't know, there's not one in my
15 mind.
16 But there may be one legally, I don't
17 know.
18 Q Are you familiar with the outstanding
19 Florida water designation, the OFW?
20 A Somewhat.
21 Q What's that?
22 A Well, that's, I don't know how they
23 word it now, but it's -- it would be a special
24 designation of a specific water body, and they
25 would have been passed in there in groups in
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1 various ways to -- where it was a no significant
2 degradation requirement for anybody that is
3 discharging, and it applied to the -- the
4 baseline for that designation was a period in
5 time when the designation was given to that water
6 body.
7 Q Okay, do you know if any of the waters
8 of the EPA have been designated by the State of
9 Florida as outstanding Florida waters?
10 A I would suspect that Loxahatchee and
11 the Everglades National Park would be.
12 Q When you say Loxahatchee, do you
13 distinguish in your mind between Water
14 Conservation Area 1 and Loxahatchee National
15 Wildlife Refuge?
16 A There's a physical difference as I've
17 been told, in that the boundaries aren't exactly
18 identical, but use the terms interchangeably.
19 Q Okay, during the period of time you
20 were at DER and thereafter, involved with clients
21 in the EAA, did you ever become aware if there
22 were discharge permits for the SFA-S6, S-7, S-8
23 or the 155 structure?
24 A There were not.
25 Q The waters discharged into Loxahatchee
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1 and the water conservation areas and the four
2 primary canals running through the WCAs, what is
3 the source of those waters, to your knowledge?
4 A There's a lot of levels at which you
5 can describe source. But I think in the context
6 we're talking about here, there's -- the water
7 generally either comes, falls from the sky, or it
8 comes from upstream, which would be the lake, or
9 it comes upstream, runs across the land and
10 discharged or falls from the sky, runs across the
11 land and is discharged.
12 Q Do you have any sense of the
13 contribution of the various sources of water
14 through the structures in terms of the phosphorus
15 loading to the water conservation areas and/or to
16 the EPA in general, which includes the water
17 conservation areas?
18 A I'm not sure I understand the question.
19 Q You're familiar with the concept of
20 pound-on, pound-off that the industry has
21 proposed for responsibility for phosphorus?
22 A Yes, somewhat familiar.
23 Q In your understanding, the rationale
24 behind that, and behind the Everglades
25 restoration mandated by Marjorie Stoneman
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1 Douglas, is in part a reduction of phosphorus
2 loads in concentrations to the EPA?
3 A Yes.
4 Q What is your understanding of the
5 phosphorus load origin to the EPA from the
6 various sources you've cited?
7 A I don't know the answer to that.
8 I know that, you know, you can do a
9 balance from a lot of different perspectives, but
10 I've really never tried to figure out where
11 all -- what the phosphorus balance is for the
12 EAA.
13 Q Are you familiar with the Burns and
14 McDonnell December 1992 draft report on historic
15 phosphorus loads for the Everglades agricultural
16 area?
17 A I have a copy and I've glanced over it,
18 and I probably heard presentations where much of
19 it has been presented.
20 Q The letter your counsel provided me
21 dated April 6th listing the documents you
22 recalled reviewing, it mentioned reports by Burns
23 and McDonnell in STA design.
24 The report I just mentioned, that's not
25 actually on STA design per se, is it?
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1 A No, I don't think so.
2 Q But that is one that you've
3 reviewed --
4 A I have a copy, and I've thumbed through
5 it.
6 But frankly, with the volumes of things
7 we have to read, and as many opportunities as I
8 have to get information from meetings and
9 presentations by people like Gayland Miller, I
10 probably rely more on listening to their
11 presentations and I only scan through documents,
12 without really going through them in great
13 detail.
14 Q That report to the District suggests
15 the results of Burns and McDonnell's analysis
16 that the EAA basin discharges account for 90.9%
17 of the total load on an average basis of
18 phosphorus discharged to the EPA from the various
19 structures, they look at Lake Okeechobee as a
20 source, the basin, the EAA basin, the L-8 basin,
21 the C-51 basin and the G-88/G-136 source
22 structures.
23 Would you agree or would you disagree
24 that that would be an appropriate percentage on
25 average, roughly 90, 91%?
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1 A Well, obviously what they're doing is
2 excluding rainfall and making rainfall an EAA
3 component.
4 Because I can't recall specific
5 numbers, but the numbers I've seen indicate that
6 the majority, you know, a lot of the
7 phosphorus -- not the majority but a lot of the
8 phosphorus falls from the sky.
9 Q Okay, it falls from the sky on the
10 ground; and, if they're analyzing discharges to
11 the EPA, they're looking at EPA in-flows?
12 A Mm-hmm.
13 Q Rainfall does not in-flow to the EPA;
14 it either falls on the EPA or it falls somewhere
15 else and is an in-flow to the EPA through the
16 basin drainage structures, right?
17 A Well, but if it's implied that the
18 responsibility for that lies with the EAA, I
19 don't know that I would agree with that.
20 I haven't --
21 Q Well now, in your experience as a
22 regulatory agency employee dealing with
23 permitting matters, is it not a fact under
24 Florida law anyone who impounds water on their
25 property, rainfall on their property, becomes
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1 responsible for that rainfall?
2 A I don't know that's the case.
3 Q If you discharge or allow discharge of
4 rainfall from your property in the State of
5 Florida, are you not responsible for the quality
6 of the water discharged from your property?
7 A I don't know that's the case.
8 I think that's a lot of what this
9 proceeding is all about.
10 Q You think that it's a novel notion in
11 the State of Florida that a party is responsible
12 or a landowner is responsible for the water they
13 impound on their property and subsequently
14 discharge?
15 A I think it's a novel notion in this
16 state as far as my experience is concerned that a
17 regulatory agency would come in and impose a
18 regulatory program, and at the same time impose a
19 public-works type construction program, and in
20 that process itself changes the nature of what
21 we're doing here as compared to what a quote,
22 normal, unquote program would be in Florida as
23 far as DER is concerned.
24 Q So you recognize then that Marjorie
25 Stoneman Douglas may have changed the playing
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1 field?
2 A That's correct.
3 And it may have changed obligation
4 since, as I recall, though I don't have the
5 specifics in front of me, the responsibility was
6 based on benefit, and for a good deal of this, --
7 and that's the part we're trying to play out now:
8 is who benefits from what, when and where, and
9 how do you determine that?
10 And how does that obligate people to
11 things like funding of STAs and things.
12 Q Do EAA farmers benefit from the
13 rainfall?
14 A I suppose.
15 Q I mean, easier for irrigation?
16 A They benefit from it sometimes.
17 I guess if they get too much, they
18 probably don't benefit from it.
19 Q At times when they receive insufficient
20 rainfall how do they maintain the integrity of
21 their crops?
22 A They irrigate.
23 Q What's the source of their irrigation
24 water?
25 A Generally it's Lake Okeechobee.
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1 Q Through --
2 A Or it's the canal system itself and
3 each other.
4 I mean, if I'm pumping my water out on
5 another farm, if I had a farm, and the other
6 farmer took water in, then that farmer would be
7 the beneficiary of the rain that fell on my
8 property, I suppose.
9 Q When you were involved in permitting on
10 behalf of DER, did you ever deal with a permit
11 for discharges as to outstanding Florida waters?
12 A Yes.
13 Q What outstanding Florida water was
14 involve?
15 A Suwanee River.
16 Q What type of discharge?
17 A It was a phosphorus chemical treatment
18 plant.
19 Q Wastewater treatment plant --
20 A Sewage treatment plant, so it was --
21 I'd characterize it as an industrial waste.
22 They would, as I recall now, change the
23 pH, some of the phosphorus processing, and there
24 was a discharge from that facility through I
25 believe it was Swift Creek, it was a creek there.
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1 Q What level of phosphorus were they
2 discharging?
3 A I don't know, it was high. I don't
4 remember.
5 Many many times higher than what we're
6 talking about here.
7 Q How did DER conduct its analysis to
8 determine whether to issue the permit or not?
9 A I think -- I'm trying to remember,
10 because when I dealt with that I was on the
11 enforcement side of the ledger and I was dealing
12 with it as the enforcement operative, and not as
13 the permitter, so it was already permitted when I
14 came in.
15 Q The facility was in violation of its
16 permit at that point; you were taking enforcement
17 action?
18 A Yeah, they killed some fish, I think a
19 lot of them.
20 Q That sounds like a significant impact
21 or degradation?
22 A Well, we thought so.
23 I think they settled out with a consent
24 order and some kind of fine.
25 But I was trying to remember the -- I
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1 don't know how they made the determination for
2 initial issuance of the permit.
3 Q So you don't know how they applied the
4 narrative standard then or whether that water had
5 a numerical standard at that point?
6 A It didn't have -- Well, it didn't have
7 a narrative standard.
8 I can tell you that we -- what we did
9 was to -- in fact, I probably have it on my
10 resume; if I didn't, I should -- I don't have it
11 on there anymore.
12 We set up a -- What happened, they had
13 some violations and some problems, and we set up
14 a committee to try to determine what the OFW
15 standards should be --
16 Q For that water?
17 A -- for that waterway, and the committee
18 was chaired by a guy named Bill Hinkley with DER,
19 I was the district representative; they had some
20 people from industry, so forth, on it.
21 And I also at one point had been in
22 charge of the biology program there, so we did a
23 lot of the sampling, the biologist that worked
24 for me did a lot of sampling; I did some of it
25 myself on that system.
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1 And we finally -- I don't know what the
2 conclusion of the committee was, because what we
3 were trying to determine was what "significant"
4 meant in that case, and I think I left DER before
5 that was concluded.
6 And I probably received a copy at some
7 point of what they finally did and wasn't
8 interested in reading it.
9 Q Did the permit itself originally issued
10 have numerical standards in it --
11 A I don't remember.
12 Q -- for the discharge items?
13 A I sure don't remember.
14 What we did do was I know we talked
15 about grandfathering a lot, but I don't remember
16 specifically what -- whether grandfathering was
17 an issue in that or not.
18 Q Do you recall -- Are you familiar with
19 the mitigation provision of Florida water quality
20 regulations?
21 A No, they -- I'm familiar with them in
22 that I know that they exist. But about the time
23 that I was working myself out of that kind of a
24 process is when they were working on that rule.
25 I may have still been with the
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1 department, but -- I did a lot of work with the
2 department on rule-making as a commenter, going
3 to the workshops, but that was not one where I
4 worked on.
5 Q So you never dealt with mixing zones,
6 things like that?
7 A I've dealt with mixing zones as a
8 practical matter, but in later years.
9 But I did not -- was not involved in
10 the rule.
11 Q Okay, let's shift to the later years
12 now.
13 After you left DER, have you ever been
14 involved in assisting or drafting an application
15 for -- other than the current EAA work, during
16 that interregnum from leaving DER to roughly,
17 what, about '88 when you went with Sugar Cane?
18 A '84.
19 Q Well, okay, let's go to the end of your
20 time with the Sugar Cane League.
21 A Okay.
22 Q Take it in six-, eight-year chunks, did
23 you ever draft permit applications dealing with
24 discharges to outstanding Florida waters?
25 A No, the role of the Florida Sugar Cane
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1 League was not to seek permits for its members,
2 so we did not.
3 Q You didn't even assist or advise?
4 A The only thing we did, we did
5 rule-making work, and we did -- we might have
6 worked a little bit on mill permits, but not on
7 any ag discharge work, until we got to the point
8 where we started this Everglades thing and some
9 of the Lake Okeechobee stuff.
10 Q What in your view is the class
11 applicable to the canals of the District, or what
12 class of water would they be?
13 A The canals?
14 Q Yes, Sir.
15 A As far as I know they're Class 3.
16 Q How about the water conservation areas?
17 A As far as I know, they're Class 3.
18 Q You said you believe that WCA is one
19 class; Loxahatchee is OFW?
20 A Yes.
21 Q Which is higher, OFW or Class 3
22 standard?
23 A In my mind they're not the same thing.
24 The Class 3 standards are standards; then the OFW
25 standard would be, and I don't recall exactly how
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1 the language is written now, but it would be
2 imposed on top of that, if it was more stringent,
3 based on the -- at the time it became an OFW;
4 then the term, however the verbiage is, would
5 come into play: that you wouldn't do whatever it
6 said you wouldn't do.
7 Q So to determine the allowable levels of
8 any particular discharge constituent in an OFW
9 that's also Class 3, you would look at the
10 Class 3 standard, you would look at the OFW
11 standard for the baseline year, and whichever is
12 more stringent would apply?
13 A Well, if the OFW numbers made any
14 difference, I mean, yes.
15 I don't know how they judge OFW numbers
16 now. I know when we did the Suwannee, we tried
17 to relate those numbers back to why it was made
18 an OFW, all the other stuff, and it wasn't just
19 simply: If you found carbon, okay, at certain
20 levels in the OFW, you wouldn't necessarily
21 assume that, just because you had five percent
22 more carbon, that that was significant
23 degradation.
24 Now I don't know that's the way the
25 department does it now. I know in that specific
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1 instance that's how we applied it.
2 So you applied it with some reason.
3 The significant degradation was the key. It was
4 not simply a number over another number or over
5 background.
6 Q I noted that in your -- in the listing
7 provided by counsel, documents you recall
8 reviewing, it does not list the draft report by
9 Frank Neerhoof from DER regarding violation of
10 Florida water-quality standards in the EPA.
11 Are you familiar with that report?
12 A I heard Frank or somebody, either Frank
13 or Tom Swiehart, give a presentation on that at
14 some point in time, I don't remember when or
15 where or why.
16 Possibly it was either to take -- Or it
17 may have been to the STA design committee or
18 something like that; some group that had been
19 constituted by the Water Management.
20 Q Do you have a copy of that draft
21 report?
22 A I didn't have one in my file.
23 I'd forgotten about it, to tell you the
24 truth.
25 Q Have you formed any opinion about
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1 whether in fact discharge of nutrified waters
2 from the EAA have caused an imbalance in the
3 native fauna and flora of the refuge or
4 Everglades National Park?
5 A I have an opinion about Everglades
6 National Park: I don't think they have. Never
7 seen any evidence of it.
8 Q What have you done to determine one way
9 or another whether in fact there has been an
10 imbalance in Everglades National Park?
11 A Well, the only thing we can rely on,
12 since we can't get in there, is just visual
13 observations of -- any aerial photos, or
14 listening to the presentations that have been
15 given by the people from the park.
16 And the only -- the kinds of things
17 that I hear from them do not lead me to conclude
18 that there's been a problem there; that's been
19 generated by the EAA, anyway.
20 Q What's the -- Go ahead.
21 A Okay, as far as Loxahatchee is
22 concerned, it's hard to say. They maintain
23 pretty high water levels in there, for whatever
24 purpose, whatever their purpose is.
25 The way you discharge water in there,
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1 it looks like it pools in the south. I don't
2 know what role hydro -- plays.
3 You have a series of canals that come
4 done the side. In some cases for instance you
5 have cattails on it which are obvious and, you
6 know, you can't really get at subtle changes
7 in -- without actually getting onto the site.
8 You can sort of see cattails when you
9 fly over.
10 So I don't have an opinion yet as to
11 what's going on in Loxahatchee.
12 Q Have you looked at the data that's been
13 developed by the Sugar Cane League as part of its
14 entry and testing program into Loxahatchee?
15 A No.
16 Q What aerial photography or
17 remote-sensing data have you examined in
18 connection with forming this view that there is
19 no demonstrated imbalance in flora and fauna in
20 Everglades National Park?
21 A We had some aerial photographs, I don't
22 know where they came from, when I looked at them,
23 it's been several years ago, around the S-12
24 structures. Took a look at that.
25 Q Do you know the date of the aerial
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1 shoot?
2 A No, I don't remember.
3 Q Are you familiar with the increase in
4 phosphorus concentration discharges over the last
5 twenty years from the EAA?
6 A From -- Into where?
7 I don't understand the question.
8 Q Would you agree that the trend in
9 phosphorus discharges has been, over the last
10 twenty years, steadily up out of the EAA?
11 A There's more phosphorus -- I think
12 there's more phosphorus being discharged now than
13 there was twenty years ago.
14 Q Now more of the land is in flux than
15 twenty years ago, is that not true?
16 A Not to my knowledge.
17 What is twenty years ago, 1973?
18 Q Prior to the re-institution of the farm
19 bill?
20 A I would doubt -- I would doubt that
21 within the EAA, but I don't know.
22 Q Are you familiar with the reports put
23 out by the Economic Research Service of the
24 Department of Agriculture on the sugar industry?
25 A No.
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1 Q You never saw the sugar and sweetener
2 outlook reports while you were at Florida Sugar
3 Cane League?
4 A I may have seen it, but that was not my
5 area of concern.
6 Q Do you know how many acres are in
7 production this year in sugar cane?
8 A Over four hundred thousand.
9 Q Over 430,000, isn't it?
10 A I don't know, I don't work for Sugar
11 Cane anymore. I don't keep up with those
12 numbers.
13 The point is though, the question you
14 asked, not to be misleading, is that, was more
15 land developed.
16 A lot of the lands was developed, and I
17 haven't seen the numbers on this but I'll give
18 you my impression: A lot of the land, it was in
19 pasture and so forth back in that period that's
20 now in sugar cane, so it was developed; there's a
21 lot more acreage of sugar cane now than ever
22 before.
23 But I don't know how that translates
24 into actual more acreage of agriculture. You'd
25 have to look at a report on that.
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1 Q You stated that you thought that higher
2 loads of phosphorus were being discharged now
3 than in comparison to twenty years ago?
4 A Well, I'll tell you why I think that:
5 The only information I really
6 specifically looked at to see that is something I
7 intend to get around to, just haven't, when we
8 look at the -- I -- when they did the, I believe
9 it was the Lake Okeechobee SWIM plan, we looked
10 at a lot of numbers and we were concerned about
11 the change of direction of phosphorus and water
12 in the interim-action plan as a result of the
13 interim action plan.
14 And as I recall, the interim-action
15 plan jumped that number; there was about a ten
16 percent overall increase, and I want to say a
17 twenty-two percent, that may not be exactly
18 right, percent discharge increase as a result, or
19 it appeared to be, without doing a real
20 comprehensive analysis, kind of gross increase as
21 a part of the implementation of the
22 interim-action plan.
23 So yes, there was higher phosphorus I
24 know going down south as a result of that report,
25 starting in like '79 or whenever the
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1 interim-action plan came in.
2 Q That was as a result of pumping the
3 water south instead of back-pumping it into the
4 lake?
5 A Yes.
6 Q How long does it take for elevated
7 phosphorate levels to eutrophy --
8 e-u-t-r-i-f-y -- an oligotrophic system and cause
9 visible impact in the higher trophic species?
10 A I couldn't -- That's a very broad
11 question. You'd have to know the system.
12 You'd have to know the concentrations.
13 You'd have to know that phosphorus was the
14 limiting factor; that it was the factor that was
15 affecting it the most.
16 There's too many unknowns for me to
17 answer that.
18 Q Okay, so from that I take it, if you
19 don't know the year that the photos -- the
20 aerials were shot that in your view showed no
21 visible impact at the S-12 structures in
22 Everglades National Park, you cannot with
23 certainty evaluate whether that reflects elevated
24 phosphorus levels or not?
25 A Well, I never contended that it was
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1 necessarily attributable to phosphorus at all.
2 All I did was take a look -- and I knew
3 at that time, I don't recall, I knew at the time
4 what the year of the photographs were, they were
5 probably fairly current, but things could have
6 changed since I looked at those.
7 Q That's sort of my point.
8 A Certainly things could have changed
9 since I looked at that, but I don't know.
10 All I was looking for was a vegetative
11 change. I wasn't looking to tie it to anything
12 spectacular.
13 We took a trip down there, I stood on
14 the road, kind of looked out, tried to look over
15 without getting arrested for trespassing or --
16 What's the statute of limitations on that?
17 Anyway, I didn't go on their property,
18 I stood on public property, tried to look, see if
19 I could see some changes.
20 I've also flown over the highway there,
21 tried to look down and over the edge of the S-12
22 structures and see if I could determine any
23 vegetative changes, and I looked at a few aerial
24 photographs to see if I could determine any
25 changes, and I couldn't.
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1 And then later we were denied access,
2 and so I sort of forgot about it.
3 There was no way, without getting on
4 the ground, to tell that.
5 Q Do you plan to go down there on the
6 Everglades entry program starting this month?
7 A Haven't been invited. Haven't really
8 set the time aside.
9 Q You may want to talk to counsel,
10 because you have the right to do that.
11 A I have flown over that area, I don't
12 want to mislead you, I have flown directly over
13 that area -- okay? -- since then, with the park
14 officials, okay? So I've kind of looked down.
15 But that too, I would not characterize
16 that as an investigation.
17 Q Are you referring to the trip arranged
18 by the Department of Justice with Dr. Mifay and
19 Dr. Soopka?
20 A Yes.
21 Q And Mr. Wedgworth and somebody else?
22 A Just us, me.
23 Q Just the four of you, okay.
24 A Yes.
25 Q You seem to be focusing on the visible
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1 vegetative changes.
2 A Right.
3 Q If we're dealing with a photograph, the
4 reason for that should be fairly obvious, but in
5 fact, based on your experience at DER, is it not
6 possible to have a violation of Florida
7 water-quality standards that are not visible to
8 the naked eye?
9 A If you're talking about an ecological
10 imbalance, that -- that's a determination that
11 I've never seen made to -- that's been that well
12 defined, where you would -- you would point to an
13 ecoshift or ecosystem or community structural
14 change and say that constitutes sufficient change
15 to be a violation.
16 I personally have never seen that
17 happen.
18 Q Is there a numerical dissolved oxygen
19 standard in Florida law for water quality --
20 A There is.
21 Q -- for Class 3 waters?
22 A Yes.
23 Q Is that visible to the naked eye?
24 A No.
25 Q How about pH?
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1 A Well, those things are visible to the
2 naked eye in the laboratory under -- if you're
3 looking at instruments that you're using or in
4 the field.
5 If you're using it, in looking at the
6 instrument, to that degree you can take a look at
7 it, see that the instrument tells you you have a
8 violation, and you've calibrated the instrument
9 so you assume that to be correct.
10 Q So you have to conduct certain types of
11 testing?
12 A Sure.
13 Q That stuff doesn't show up, at least
14 not immediately, on an aerial photograph?
15 A It wouldn't show up on an aerial
16 photograph.
17 Q But if those numbers were out of
18 standard it would be a violation for a water
19 quality to discharge waters without permit into
20 Class 3 waters or outstanding Florida waters that
21 did not meet applicable standard?
22 A Well, it could be, if you didn't have
23 appropriate authorization.
24 Q Sure, that's what I said, there's no
25 other authorization other than that permit from
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1 DER, right?
2 A Well, you could have -- yeah, you could
3 have a permit and be authorized to discharge
4 something that didn't meet the standards, if you
5 had a mixing zone or something.
6 Q Did any of your work at EPD involve
7 other mitigating standards other than like a
8 mixing zone?
9 Are you familiar with the other
10 mitigation provisions?
11 A Give me an example.
12 I can't --
13 Q What other mitigation provisions are
14 there for Florida water --
15 A I don't know. If you described what
16 you're talking about, I would tell you if I'm
17 familiar or not familiar with them.
18 Q The reason I asked, I'm trying to home
19 in a little bit now what exactly it is -- it
20 means when counsel says your expertise is in
21 environmental regulatory analysis, which is how
22 you were designated.
23 In fact, let me make this Exhibit 2.
24 A Well, ask the question.
25 (Exhibit 2 marked as requested)
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1 BY MR. FITZGERALD:
2 Q Exhibit 2 I'd represent is a portion of
3 your designation as an expert witness filed by
4 counsel for the Florida Fruit and Vegetable
5 Association.
6 You'll see near the bottom of
7 Paragraph 2 your name and your expertise is in
8 environmental regulatory analysis and rule-making
9 requirements?
10 A Mm-hmm.
11 Q And I'm kind of curious as to what the
12 nature of the testimony is you expect to provide
13 in this case within those two areas?
14 A I don't know, whatever comes -- what
15 becomes necessary, I suppose, to try to analyze
16 the impact of the SWIM plan on our growers.
17 That's what I do.
18 Q What will be the impact of the SWIM
19 plan on your growers then?
20 A Well, the SWIM plan could affect the
21 growers in a lot of different ways.
22 The -- What you do in analysis of that
23 is try to determine what's the worst case and
24 what could happen, what is likely to happen, and
25 see what it is they want; where they want to go;
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1 what the risks are they're willing to take with
2 that process.
3 Q Well, what analysis have you provided
4 to your growers regarding the potential impact of
5 the SWIM plan on them?
6 A Well, the SWIM plan impacts to me are
7 pretty obvious. The SWIM plan calls for some of
8 the things that have already happened:
9 development of rules and percentage reductions of
10 phosphorus and -- that went into the SWIM rule,
11 that could have been much worse and wasn't.
12 Could have been a requirement of sixty
13 percent, if they wanted to take the top end of
14 the Izuno study, which would have required that
15 they probably go out of business or something.
16 Q Well, maybe, just so that I realize
17 that you can hypothesize to no end, but in fact
18 the rule did not go to the sixty percent, so if
19 you could restrict your answer -- My question is
20 the impacts you've communicated that the SWIM
21 plan as it exists currently?
22 A Okay, that's a different question.
23 Q Otherwise it's just, we'd be here for
24 weeks.
25 A Okay, right, but you asked me, the
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1 second part of that is you asked me what you've
2 communicated. That's much more specific.
3 Q So you told them: "Look, if it was
4 sixty you'd be in a heap of trouble, as opposed
5 to what you've got"?
6 A Something look that.
7 As far as what we've communicated with
8 them is that the SWIM plan, as a part of the
9 process whereby they will be regulated, and the
10 regulation will come in two forms, one of them
11 they've already experienced, the other one
12 already with regard to the overall treatment plan
13 for waters leaving the EAA.
14 And that obviously, the plan that's on
15 the books calls for the District taking
16 significant acreage out of production --
17 Q How much of that acreage is in
18 vegetable production now?
19 A Not a lot. Some.
20 Q How much?
21 A I don't know.
22 Q When you say vegetable production, do
23 you include sod as a vegetable?
24 A No, but it will take considerable
25 agricultural acreage out of production.
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1 Now how that shifts the players around
2 within the EAA, I don't know.
3 And what I didn't -- I didn't assess a,
4 you know, a degree of significance to that. I'm
5 just saying that's what's going to happen.
6 The other component of it is that
7 somebody is going to be asked to pay for it, and
8 all of the information that I've been provided
9 leads me to conclude that a good bit of that
10 would come -- is expected to come from the EAA,
11 from the growers, either as some kind of a
12 utility discharge tax or land-tax assessment or
13 some other method of, attracting funds on a
14 yearly basis to pay for a portion of the project.
15 So they have to take into account how
16 much -- how that will affect their independent
17 farming operations, which I can't do for them
18 because I don't know what their profit margins
19 are.
20 Q So you're not attempting to assess for
21 your growers and advise them as to the levels
22 that they could afford in theory --
23 A No.
24 Q -- in a funding scheme?
25 A No, all I'm doing is trying to assess,
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1 based on my understanding of the projects that
2 are proposed, what the overall project cost will
3 ultimately be, and then they can assess their own
4 level of economic risk to that.
5 I can't do that.
6 Q What work have you personally done and
7 how did you conduct it to analyze and determine
8 or assess, I think was the word you used, the
9 overall project cost?
10 A By participation in the STA design
11 process all the way from the STA design, whatever
12 they call it, STA Design Working Group or
13 whatever they call that ad-hoc committee that the
14 District set up some years ago, through SAGE and
15 other meetings to try to determine, based on
16 discussions with the design engineers and the
17 various people that are working on the project,
18 what the project, total project costs are
19 probably going to be.
20 Q So you've conducted no independent
21 analysis --
22 A Nope.
23 Q -- and you have no sense of the profit
24 margins or excess returns to land that may be
25 occurring in the vegetable industry and the EAA
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1 that would be relevant to a industry, meaning now
2 the veggie industry, fruits and veggies industry,
3 capable of funding the portion of the restoration
4 programs allocable to them under the Marjorie
5 Stoneman Douglas Act?
6 A I know I have no sense of their profit
7 margins.
8 Q You would be offering no opinion to
9 that?
10 A No.
11 Q Have you seen any documents or
12 documentation attempting to demonstrate that,
13 other than the Hazen, H-a-z-e-n, and Sawyer,
14 S-a-w-y-e-r?
15 A That kind of stuff is all I've seen,
16 and I frankly didn't read that.
17 Q Who is doing that for the Fruit and
18 Vegetable Association?
19 A I don't know, somebody through Dan
20 Botts, but I don't really . . .
21 Q The -- You were I think potentially
22 listed or understood to be a potential witness in
23 the BPM rule challenge --
24 A Yes.
25 Q -- on the rule-making requirements and,
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1 again, regulatory side of it?
2 Is it your understanding that you would
3 be offering testimony in the current proceeding
4 regarding BMPs and reductions of phosphorus from
5 the BPM rule?
6 A I might. I don't know. I don't know
7 whether that subject would be relevant to the
8 proceeding or not.
9 Q Neither do I, that's why I asked.
10 Have you attended any other depositions
11 in connection with the SWIM plan challenge?
12 A Galen Miller's, yes. Galen Miller's,
13 that is the only one.
14 Q On behalf of the FFV?
15 A That's correct.
16 Q Have you read any depositions from the
17 SWIM plan challenge process which you did not
18 personally attend?
19 A Kadlec's, and that was in the last
20 couple of days.
21 Q That was provided by counsel?
22 A Yes.
23 Q What was your purpose in reviewing
24 Dr. Kadlec's deposition?
25 A Well, I'm involved not only in this as
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1 a -- in the litigation process, but also in
2 trying to come to some kind of a technical
3 resolution of the problem.
4 And Dr. Kadlec is one of the people who
5 has been working on those kinds of aspects, and
6 aside from the fact that it gave me some insight
7 into the proposed solutions and why people
8 thought that they were a good idea, it also, I
9 hoped it would provide me with some technical
10 information I didn't have.
11 Q Did it?
12 A Not really.
13 Q What a terrible swipe at the lawyers
14 who conducted the deposition.
15 Present counsel of course were not
16 there, I would like to note for the record.
17 MR. HOFFMAN: I was going to look to see who
18 did it.
19 BY MR. FITZGERALD:
20 Q What was your purpose for being at
21 Galen Miller's deposition?
22 G-a-l-e-n.
23 A Kind of the same thing: Galen is the
24 design engineer for this project, and as long as
25 he has that contract with the Water Management
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1 District, regardless of how any litigation would
2 go or not go, his design and opinions will be
3 very important in any final determination of
4 technical solutions to the problem.
5 Q Did you hear anything new at his
6 deposition that was not already fairly covered by
7 the public presentations he's made to the Board
8 and the various SAGE and consulting groups or in
9 the written reports produced by Burns and
10 McDonnell?
11 A I hear so much, it's hard for me to
12 remember exactly what I hear and when.
13 But at some point, it could have been
14 at the deposition is when I became aware of the
15 fact that they changed the settling-rate number
16 from eight, -- it may not have been at that
17 deposition, but it was shortly thereafter -- from
18 eight to 10.2 or 10.4, something like that.
19 Q Do you know how that change occurred?
20 A No.
21 Q Did Galen explain the source of the
22 change or the refinement and calculation that
23 lead to that?
24 A No, they were kind of making those
25 numbers up as they go anyway, so I assume they
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1 decided on a different number of the ranges that
2 you get from Dr. Kadlec, you get a range from all
3 of these percentages, you get a range from
4 Dr. Richardson, you get a range from Dr. Kadlec,
5 a range from Dr. Walker, and how they maneuver,
6 move that number around within that range, I
7 assume would be through some sort of a refinement
8 of the person who did the original work.
9 Like Dr. Walker gives a range and he
10 finally maybe decides it should be a few points
11 up or down from that range based on some other
12 information.
13 But I don't know, they didn't explain
14 it, and I frankly didn't -- I feel like they'll
15 move it around before it's over; didn't get
16 involved.
17 Q I seem to be getting the sense you
18 don't put a lot of faith in statistical or
19 empirical models?
20 A I think they're very useful tools, but
21 in this particular instance, where you're doing a
22 treatment process, my personal preference would
23 be more that you actually measure what you can
24 get, given the limitations of construction, and
25 do it that way.
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1 Q Through the ENR?
2 A Or some other pilot-type program, yes.
3 Q Something like that?
4 You recognize that the ENR cannot
5 produce results in a time frame consistent with
6 Marjorie Stoneman Douglas mandates, don't you?
7 A Well, philosophically, I know projects
8 have been going on for, you know, over a decade
9 that were supposed to have been resolved a year
10 or two later, so I guess what I feel would be
11 better off, regardless what the Marjorie Stoneman
12 Douglas Act said or didn't say, we'd be better
13 off in making sure we were right in whatever we
14 were going to do, then going ahead and following
15 the dictates of the Legislature.
16 And that may not be the law, that's
17 just the -- being technical aspects.
18 Q I understand you, you prefaced it by
19 saying philosophically.
20 I assume as a former DER employee
21 you're not urging the two state agencies to
22 ignore their legal mandate?
23 A I really don't care whether they do
24 that or not. That's their problem.
25 Q You understand, if they ignored it,
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1 somebody else would be suing them instead of the
2 three current petitioners trying to mandate them
3 to carry out their duty under Florida law?
4 A I would not be surprised if they were
5 sued before this process was over with by
6 somebody.
7 Q By somebody?
8 I don't think they would be either.
9 Have you assisted in any way in
10 preparing other individuals for their depositions
11 in connection with the SWIM plan?
12 A No.
13 Q Mr. Botts --
14 A The only -- There's one exception to
15 that -- no, not Mr. Botts.
16 Mr. Wedgworth asked me to help him
17 recollect the sequence of events as far as
18 bringing Dr. Richardson on board, prior to
19 Mr. Wedgworth's deposition, and it was not a
20 planned thing, it was more of a casual
21 conversation.
22 That's all though, and that was what he
23 asked me about.
24 I had been his staff member before on
25 that, and that's why I think he asked me.
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1 Q Do you have your final opinions or have
2 you formulated your final opinions at this
3 juncture with regard to plan requirements and
4 conclusions in light of regulatory and
5 rule-making requirements applying to DER and the
6 District?
7 A I think the plan -- I don't know about
8 the time frames, if you take the time-frame
9 aspect out -- and I don't know, those kinds of
10 things are changeable, so what's today's
11 requirement through mutual agreements or some
12 other mechanism could be changed.
13 But, if you take that out, I think the
14 present plan has already changed; I think the
15 planning documents that we're discussing here in
16 many ways is not the project as it's going to be
17 constructed; and I think there's a lot of
18 discussion going on about that at this point.
19 Q How do you think it's changed?
20 A Well, the first and most obvious thing,
21 my understanding, is the settling rate has
22 changed.
23 If the settling rates changes, that
24 changes your design.
25 I think you will see some changes with
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1 regard to, perhaps to treatment technology. I
2 think there's going to be more of a movement
3 afoot to look at the alternative-treatment
4 proposals that have been submitted and they're
5 now being reviewed and discussed by the
6 consultants for the Water Management District,
7 Brown and Caldwell.
8 The chemical-treatment options, which
9 were not included in any of the plan as far as I
10 can recall, will make its way into it.
11 That's just an opinion. I'm not in a
12 position to dictate that.
13 Q Why do you feel that chemical treatment
14 is a viable option for producing marsh-quality
15 water, or do you think it is a viable option for
16 producing marsh-quality water?
17 A I think it may be.
18 There are some regulatory problems with
19 it that would have to be worked out.
20 Q What are they?
21 A Well, sludge disposal is one.
22 And the second one would be the issue
23 of whether or not the water is, for lack of a
24 better term, -- there's no legal basis for this
25 term, but it's one that's come up among the
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1 scientific people now -- would be marsh-ready;
2 whether or not the discharge would be
3 marsh-ready.
4 Q Is that a regulatory problem in your
5 understanding?
6 I mean, how --
7 A Well, it could be.
8 Q Did you have a say in the water-quality
9 standards?
10 A You know, if I had the job of figuring
11 this mess out for everybody, you know, one of the
12 things I would advise is that, if you plan a
13 chemical-treatment plant, you want to make sure
14 before you plan it and pay for it and build it,
15 all this other kind of stuff, you don't go down
16 the same path they went down with the STAs;
17 that's just jump into it.
18 You'd want to make sure that the
19 discharge, for instance, would not be toxic or
20 not cause bioassay problems; require --
21 Q How long does a bioassay test take?
22 A It's a matter of days, but there are
23 several different ways they can do them, and --
24 but what you have to do, that's not -- that's
25 not the problem here, the problem is you have to
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1 get the water that you would be discharging and
2 then subject it to various tests.
3 And the long-term tests that you'd be
4 concerned about, that you can't just simply take
5 a sample or test in a period of a few weeks, of
6 course would be the same thing we've talked about
7 here: that would be any imbalance problems that
8 might come from it.
9 Q In your estimation how long would a
10 test program sufficient to validly test for
11 long-term imbalances run?
12 A Well, I don't know that you'd ever have
13 a long-term imbalance test.
14 What the vision that I would have if
15 you used chemical treatment would be that you
16 would determine through some kind of analysis the
17 chemical constituents of the discharge and try to
18 determine, if you ran them through small areas of
19 STAs, that when they came out the other side,
20 they would be appropriate, you know, they would
21 be the appropriate levels.
22 If it works, it will work I think,
23 in -- at this point, could change my mind,
24 somebody could come in with some chemical
25 treatment evidence that would change my mind
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1 entirely over the next few weeks, but right now
2 my thinking is, if you discharge, you would want
3 to make it a component of a different kind of
4 project.
5 But back to the original question,
6 chemical treatment is a very flexible option,
7 it's not the only -- it's a very flexible option
8 in that you can, you know, what makes it
9 attractive, -- and it had unattractive
10 qualities -- the fact you can add to it; make it
11 not only more efficient, but take the numbers
12 down lower.
13 That makes it attractive.
14 Q Is there any doubt in your mind that a
15 wetland system is capable of removing phosphorus
16 to some level?
17 A Oh, it will take it down. The only
18 question is how much acreage you need; what level
19 you take it down to.
20 There's going to be a sort of an
21 equaling number you'll get to with a constructed
22 wetland, and how you operate the system -- and we
23 have no idea how to operate one -- would
24 determine what that number is, I think.
25 Q Are you familiar with the letter
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1 written to Peter Rhodes at the South Florida
2 Water Management District by Dr. Ron Jones of the
3 FIU's drinking-water center regarding concerns
4 over the discharge of chemically-treated water
5 into the marsh system?
6 A I've seen it.
7 Q Therein Dr. Jones identifies a number
8 of concerns with utilizing a chemical treatment
9 system; amongst them, the reduction below
10 life-sustainable levels of micro-nutrients,
11 acidity problems and others.
12 Do you agree that those are potential
13 problems with a chemical treatment system?
14 A Some of them may be, and I think some
15 of them aren't.
16 Q Which do you feel were not concerned --
17 A I'm not particularly concerned about
18 the trace elements.
19 Q By trace elements you mean, selenium,
20 molybdenum, that sort of thing?
21 A Right.
22 You've got a big marsh system, and we
23 don't even understand, he's talking about -- what
24 he's talking about in there is not just an impact
25 from discharging too much of something, you know,
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1 he's talking about an impact from not discharging
2 enough of something.
3 We don't even know what the STAs will
4 do to those constituents of the discharge.
5 And I would think it would be highly
6 unlikely that those would be limiting factors in
7 the present community structure of the
8 Everglades.
9 It's possible, but it's not something I
10 would jump at immediately; say: Well, this is a
11 big concern of mine.
12 Q Have you ever looked at levels of those
13 trace minerals and micro-nutrients that are
14 necessary to sustain a viable wetlands ecology?
15 A Those are, as far as I know, largely
16 unknown.
17 Q Is that the sort of thing that would
18 have to be determined in the long-term testing
19 program to see if it were appropriate to
20 discharge this type of water or whether this
21 waters was marsh-ready, I think is the term you
22 used?
23 A I don't think so.
24 I mean, it could be, but it's like the
25 marsh community structure is as it is as a result
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1 of the competitive nature of the species that are
2 there in the community.
3 The primary things that affect
4 community structure, and there are some
5 overriders like salt and things like that, salt
6 spray area, but primarily ecologically what you
7 look for, temperature and precipitation first.
8 Precipitation in this case is
9 complicated because you have a man-control system
10 where you're controlling the waters, it's not
11 just what's falling from the sky, it's coming
12 outside of these districts, going down canals,
13 doing all kinds of other things that aren't like
14 it was back before we got here.
15 Then you can go to some secondary
16 concerns. There's a lot of things that play on
17 there. I mean, fire ecology is something never
18 really been adequately addressed.
19 You know, I don't think -- and this is
20 just an opinion and it could change if I
21 discovered some research to the contrary -- that
22 the trace elements are going to be a big player
23 in this game.
24 Q In your view did the District properly
25 follow the mandates of Florida regulatory law,
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1 the EPA, et cetera, in implementing the EAA rule?
2 A As far as I know.
3 Q So as far as know you find no fault in
4 their technical compliance with the statutory --
5 or the statute for framework controlling the
6 implementation of regulations by a
7 duly-designated agency?
8 A As far as I know they didn't.
9 We could have challenged that rule, I
10 think, based on the technical concern we had that
11 they -- twenty-five percent was not really
12 well-based and well-founded in science.
13 But they did have some basis for it, so
14 we agreed not to challenge them for it.
15 Q Now I started to get into this a little
16 earlier, then we got off on a sidetrack, probably
17 joking about something. We were talking about
18 the aerials and, you know, when an imbalance
19 becomes visible to the eye. We talked about
20 dissolved oxygen, pH, some other factors.
21 You would agree, would you not, that
22 Florida water-quality standards can be violated
23 well before any higher trophic change is evident
24 to the naked eye?
25 A Well, it depends on the water-quality
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1 standard you're talking about.
2 Q What water-quality standard are you
3 thinking of that could not be violated before it
4 was visible to the naked eye?
5 A I would -- We're back to the question
6 of imbalance.
7 If you're talking about is a wetland
8 system or any other system, has it been
9 imbalanced by the cultural activity that you're
10 concerned about, you have to take into account
11 the fact that you're talking about a dynamic
12 system, and over time the system changes whether
13 we do anything to it or not.
14 It changes subjects to the constraints,
15 the physical constraints that have been placed on
16 it that may have nothing to do or very little to
17 do with the discharger.
18 We can all make our own judgments as to
19 what balance is an what balance is not, but I
20 think I would be more inclined to discourage a
21 client, whether that client was the government
22 when I was working for the State of Florida or
23 agricultural interests, from getting too bogged
24 down into changes in virus communities or
25 something.
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1 The bigger the community, I mean, we
2 define the community in certain ways. You can
3 pick up the literature, we say this is a
4 sawgrass, willow, or whatever community. And
5 those are the kinds of changes that, when you see
6 them, you are concerned that you've had an
7 ecosystem shift, and then you have to investigate
8 that and see whether or not it was caused by the
9 discharger or caused by something else.
10 But as you work your way down and you
11 finally get down to microbes and things like
12 that, then personally, as a biologist, I would
13 recommend that you then only get excited if you
14 determine that those things will have a negative
15 impact on higher trophic levels.
16 Memory serves, for instance, species of
17 algae, it's sort of -- I don't know of any algae
18 that would make it to the endangered specie list,
19 so the preservation of certain species of algae
20 is not all that relevant except as to how it
21 affects other parts of the ecosystem and the
22 communities and whether or not it is a precursor
23 to some kind of imbalance.
24 Q Would you agree that some algae are
25 more pollution-tolerant than others?
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1 A Your higher -- the blue-greens are the
2 ones that you find -- the cyanophytes are the
3 ones that you find around the discharges of
4 high-nutrient systems.
5 Q And would you agree as a biologist that
6 the parfarif, (phonetic), or algal species are a
7 significant portion of the food chain base in the
8 Everglades ecosystem?
9 A That's not necessarily the case.
10 The Everglades system as I've looked at
11 it, and most of the information that I've used
12 came from Russ Raider's work, some of the stuff I
13 read from Dave Swift, just to characterize my
14 review, you know, algae is kind of a funny thing;
15 everybody talks about algae, most of the people
16 that talk it don't know anything about it.
17 You have a sort of a complete little
18 ecosystem itself in the algal network, and what
19 surprised me about the Everglades system, based
20 on my experience with algae, -- which I've had a
21 lot; this is one of those things I had a lot of
22 course work in in college, and didn't actually
23 work as phycologist, but did a lot of course work
24 in algae, both as a graduate and undergraduate --
25 has been that the blue-greens seem to have a
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1 problem with these discharges, and that I'm sure
2 there's an explanation for that, but blue-greens
3 aren't very tasty, so the blue-green
4 algomats (phonetic) there may or may not be a
5 significant component of the food web.
6 There's not a lot of different kinds of
7 critters in the Everglades, based on the work
8 that Raider did -- in these areas I should say.
9 The ecosystem diversity that they
10 described about the Everglades, just because of
11 the vastness of the Everglades, and you have
12 quite a few different kinds of communities there,
13 but if you look within the sawgrass community for
14 instance, it's a pretty harsh environment, and
15 not a lot of critters can hang out there and do
16 well.
17 Not a lot of fish; not sure how much
18 impact it would be on birds, monsoon areas would
19 probably be more important there.
20 MR. FITZGERALD: I was thinking this might
21 be a good place to break for lunch. It's about
22 12:45, thereabouts. Why don't we break for
23 half-hour?
24 (Luncheon recess)
25 BY MR. FITZGERALD:
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1 Q Okay, let's see, continuing looking at
2 deposition Exhibit 2, your designation as a
3 witness, Mr. Barber, what work is in progress
4 that you believe might alter the -- your analysis
5 or opinions regarding rule-making requirements
6 applicable to DER and the District with regard to
7 the SWIM plan?
8 A Well, I don't know exactly what the
9 status -- I don't know exactly where the SWIM
10 plan fits, will ultimately fit, but it's
11 obviously going to be the basis of not only this
12 rule, but further determinations as to what
13 action needs to be taken for the Everglades.
14 So any standards that would come out
15 may or may not be a product of this or some
16 alteration of this plan, where all the water or
17 hydro-period objectives of the Everglades system
18 could come out of this, and it could require some
19 rule-making, I don't know.
20 Q So that would be additional rule-making
21 beyond what's occurred already?
22 A Yes.
23 Q Is it your understanding that the SWIM
24 plan currently addresses the subject of
25 hydro-period?
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1 A My recollection of the SWIM plan is it
2 was, as I reviewed it, is that, while it gives
3 some lip service to hydro-period, it doesn't do
4 very much to try to address an analysis of
5 hydro-period or any corrective actions to any
6 hydro-period problems that the area may
7 experience presently.
8 Q Okay, other than Dr. Richardson's work
9 or his public statements attributing alterations
10 of sawgrass communities to cattail communities as
11 a result of hydro-period, are you aware of any
12 other works that support his view?
13 A Well, that of course is consistent with
14 basic ecologic principles that hydro-period would
15 be a major player in community structure, and it
16 makes a lot of sense as a biologist that it would
17 be.
18 I'm not aware of any studies that have
19 been undertaken by any of the ag interests to
20 confirm that. There may be some other than what
21 Dr. Richardson is doing, which he is addressing
22 that in his study.
23 Q From an ecologic and biological
24 viewpoint, if areas of identical hydro-period and
25 more or less identical substrata show different
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1 reactions and different community growth patterns
2 and the only distinguishing factor is the
3 concentration of phosphorus, what conclusion
4 would you draw from that?
5 A Well, if you set up an experiment and
6 control every constituent of the experiment but
7 one, call it phosphorus, call it anything, and
8 you noted a change, then that would be a
9 confirmation of your hypothesis that that element
10 was causing the change or that constituent was
11 causing the change.
12 The reality here is that you could take
13 the other approach and say that, if I saw
14 everything was identical and I found cattails in
15 one area and the chemistry was the same and I
16 didn't find them in another area or they were
17 more or less extended, then do I have a theory
18 that cattails are caused by the constituent I'm
19 looking at it?
20 And the answer would be no, it has to
21 be under all conditions true or it's not
22 scientifically valid.
23 The other problem with that of course
24 is that water chemistry in the discharge, as I
25 recall from Dr. Richardson's work, there's more
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1 than just phosphorus tied to a discharge. Other
2 things go up and down and you don't know what
3 their impact is on -- They're a component of the
4 discharge.
5 They may be a result of the discharge,
6 but if you were setting up a treatment
7 technology, you may not account for them in that
8 technology.
9 Q Were you present in February of 1992
10 when the Florida Sugar Cane League made its
11 presentation talking about alternative-treatment
12 mechanisms?
13 A I think so.
14 Q You're familiar with that?
15 A Yes.
16 Q From SAGE, I assume, if nowhere else?
17 A Yes, I think I've seen that
18 presentation before, probably several times.
19 Q In the course of that presentation do
20 you recall the statement that, while the Sugar
21 Cane League viewed phosphorus as a problem, it
22 was not the primary problem; they viewed
23 hydro-period as the more pressing concern?
24 A I remember something about that, yes.
25 Q Do you accept that as correct, or do
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1 you even have an opinion as to what the proper
2 ordering of those problems should be?
3 A If you're looking at the Everglades as
4 a whole, the whole two million acres, if you want
5 to includes the conservation areas and Everglades
6 National Park, it's my opinion that hydro-period
7 is the issue.
8 If you're looking at a 8-thousand acre
9 portion of Loxahatchee or a 25-thousand acre
10 portion south of the S-10 structures in 2-A, it
11 may or may not be the problem.
12 So it depends on what problem you want
13 to address.
14 If you want to address the whole issue
15 of the Everglades, it's going to be --
16 hydro-periods is going to dominate that; not
17 water quality.
18 Q Is water quality a problem, however, in
19 your view, if not the primary?
20 A It may be.
21 MR. FITZGERALD: Can you read just back the
22 last little bit?
23 (Record read by reporter)
24
25 BY MR. FITZGERALD:
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1 Q Are you familiar with the ecological
2 history of the Everglades?
3 A Somewhat.
4 Q Do you regard or agree that the
5 Everglades evolved as an oligotrophic system?
6 A Most -- Well, first of all, to use the
7 term oligotrophic relative to the Everglades
8 could be a little confusing.
9 If I agree that initially when the
10 Everglades evolved it had some -- I don't know,
11 I don't know exactly how I would describe it, but
12 oligotrophic as a biologist generally means
13 things, that the Everglades probably isn't, in
14 terms of species diversity and biomass.
15 And maybe it evolved as a nutrient-poor
16 system.
17 I'm not sure if that translated into
18 what I would term -- and I may have a different
19 definition than any engineer who studies these
20 kinds of systems -- but I don't know if I'd term
21 it oligotrophic as such.
22 Q So that the term you would prefer then
23 is nutrient-limited?
24 A Well, everything is limited by
25 something.
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1 I would say it evolved as a system that
2 was not subjected to -- more than likely to high
3 levels of nutrients.
4 But I don't know that. I wasn't there.
5 I mean, that would be my guess.
6 Q Do you have any reason to believe that
7 the Everglades was ever, or that it was ever
8 common in the historic Everglades for there to be
9 extended mono-culture stands of cattail?
10 A I have no knowledge. The only work
11 that I recall looking at that, this was a long
12 time ago, and it was incorporated into some of
13 Curtis Richardson's work I think, was a study of
14 Corsby Gleason where he tried to determine over a
15 period of time what the Everglades looked like.
16 And it apparently, the spots that he
17 chose, it had changed a lot over the years.
18 Q Are you familiar with vegetative
19 surveys done immediately post-World War 2 by John
20 Davis, no relationship to the current Dr. John
21 Davis we were mentioning earlier today?
22 A Yes, my impression were those surveys
23 were done prior to World War 2, but they were
24 published in I believe 1943.
25 I could be wrong on the date of
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1 public --
2 Q I stand corrected, you're right.
3 Have you seen the vegetative maps dated
4 1943?
5 A Yes.
6 Q Produce by Dr. Davis?
7 A Yes.
8 Q Do you recall if there were any
9 monotypic stands of cattail depicted on that?
10 A There was a stand of cattail, and I
11 don't recall what the exact language he used, but
12 up in an area that is now EAA on that map, and it
13 was -- I don't know whether it was -- what
14 percent of cattails and something else it was,
15 but there was significant cattails in it
16 according to the map.
17 Q Do you recall that that cattail stand
18 or the area which indicated some cattail presence
19 was south of the east-west canal?
20 A That's about where I would -- I would
21 remember it to be, yes. It was somewhat south of
22 that, that area.
23 Q What's the common name for that
24 east-west canal?
25 A Well, there's Bowls and the Cross, so
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1 it's the Bowls-Cross Canal combination, or ocean
2 canal.
3 Q It's the easterly portion between the
4 New River Canal and the Hillsboro Canal?
5 A As I -- I'd like to see the map again,
6 but as I recall it just sitting here, I believe
7 that's approximately where it was.
8 Q Other than that and Gleason's work, are
9 you aware of any other work attempting to
10 determine the extent of cattail in the historic
11 Everglades?
12 A I don't think Gleason or Davis
13 attempted to determine the historical cattail
14 area, just simply trying to categorize it
15 vegetatively.
16 There may have been some work done,
17 though I'm not familiar with it, I'm aware of it,
18 by I believe it was Taylor Alexander, I think
19 that's his name, a guy out of Miami, University
20 of Miami, years ago.
21 But I'm -- I've not looked at that
22 work, I've just had people talk to me about the
23 fact that he had looked at that.
24 Q When was that work done?
25 A I don't remember. It would have been a
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1 good long time ago though, years ago, decades
2 ago, maybe in the seventies, sixties, I don't
3 know.
4 Q Is that published work? Have you seen
5 it referenced anywhere?
6 A No. He was a professor or something at
7 University of Miami, and I just heard that he had
8 done some work out there.
9 But I've not seen it.
10 MR. FITZGERALD: Could we mark this as
11 Exhibit 3?
12 (Exhibit 3 marked as requested)
13 BY MR. FITZGERALD:
14 Q Looking at Exhibit 3 for the
15 deposition, which is the notice of deposition
16 issued to you, have you seen this before?
17 A Yes.
18 Q Okay, did you have an opportunity to
19 review this deposition and the attachment
20 identifying documents to be produced thereto?
21 A Yes.
22 Q Did you have a chance to go through it
23 with counsel and discuss what was required by the
24 definitions and categories of production?
25 A Yes.
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1 Q I'd -- If I can invite your attention
2 to Page 5 at the bottom, documents to be
3 produced, your counsel provide me a letter dated
4 April 6, 1993, a copy of which we'll make Exhibit
5 Number 4, which identified certain documents
6 other than reports received at SAGE meetings that
7 you recall reviewing, and there are five
8 categories:
9 SWIM plan, or Everglades -- I think I
10 probably meant 4:
11 Everglades, including appendices; the
12 second is IFAS BPM plan studies, the five-year
13 study which I discussed early; the two annual
14 reports from the Duke Wetlands Center; reports by
15 Burns and McDonnell on STA design; and the final
16 category, Brown and Caldwell evaluation of
17 treatment alternatives, which I think is still in
18 draft form, isn't it?
19 A Mm-hmm.
20 There was another document that I
21 reviewed that was not listed there, I'll explain
22 why:
23 I didn't talk to counsel, but I was
24 under the impression there was two; when I went
25 back over my notes, looked through my file, I was
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1 under the impression there was two -- I mean --
2 yes, two annual reports from Curtis Richardson.
3 There's actually three.
4 The reason I thought there was two is
5 because the two of them looked alike. When I
6 looked at the covers and first few pages and all,
7 I thought they were the same thing.
8 What it is, there two, then a draft
9 third-year report that I have looked at, I have
10 not read in any detail. That's the one I was
11 notified yesterday by his office, the final would
12 be out any day now.
13 So I would correct that.
14 Q Then the (b) and (c) evaluation of
15 treatment alternatives.
16 Looking at Paragraph 5 -- or Page 5,
17 Paragraph Number 1 on Exhibit 3, calls for:
18 "Any and all documents including
19 correspondence relating to the
20 development and the review of the
21 Everglades SWIM plan from 1987 to the
22 present."
23 With the exception of the five
24 categories that identify publicly-available
25 studies and documents, did you have any
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1 correspondence or other documents related to the
2 development of the SWIM plan or your analysis of
3 any issues related thereto?
4 A This morning counsel, the letter we
5 talked about that I sent up for Botts' signature
6 or whoever signed it to go out to Til Creel,
7 based on my assessments of the SWIM plan. I
8 forgot about that.
9 But I noted it, it was not under my
10 signature, and I forgot I was the one that wrote
11 it.
12 Q So that was the FFVA's comment letter?
13 A Yes.
14 Q A formal letter to the District?
15 A Correct.
16 Q Okay, other than that correspondence,
17 have you generated any other letters,
18 correspondence going back to '87, which would
19 include any period during which you were employed
20 by the Sugar Cane League, when you developed
21 correspondence on their behalf?
22 A Okay, one other thing, that thing that
23 was in there that he talked about this morning
24 that I wrote for that journal.
25 Q Why didn't you find that article when
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1 you were reviewing your files?
2 A Well, I didn't have it in my files.
3 I asked counsel about it. He asked me
4 if I used any of the information in that or
5 anything for any of the decisions. I said no, it
6 was more or less just an opinion letter, it was
7 written several years ago, and it didn't have any
8 facts in it that were particularly relevant.
9 Q Well, I think that would have been
10 relevant in any event, under category 6, but
11 we'll get to that.
12 (Short recess)
13 BY MR. FITZGERALD:
14 Q Category 2:
15 "Any and all documents related to
16 the SWIM plan remedies and their
17 possible effect on water supply, water
18 quantity and water quality in the
19 ecosystem in the Everglades, the WCAs,
20 the EAA or Everglades National Park"?
21 A Just a second, we didn't finish with
22 1. You asked me about anything I did with the
23 league?
24 I didn't carry any of those files with
25 me. I don't have any specific recollection.
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1 You know, I may have written letters
2 that I don't have in my file or have no -- I may
3 have written something but I don't know what it
4 is, I don't recall, but I didn't carry stuff with
5 me when I left the Florida Sugar Cane League in
6 1991.
7 Q And you don't specifically recall
8 writing anything?
9 A I don't recall writing anything.
10 Q Okay, with regard to the next
11 paragraph, Paragraph 2 that I just read, SWIM
12 plan, remedies and effect on supplies, quantity
13 and quality, do you have any documents of any
14 sort related to that subject area?
15 A I didn't find any in my files, and I
16 don't recall -- I don't normally write documents,
17 I don't normally write memos and notes, so it
18 doesn't surprise me when I look in there and I
19 don't see them.
20 Could be I sent something, but I don't
21 recall.
22 Q Since last February SAGE has met
23 probably twenty times, something on that order,
24 and you've also attended some meetings of the
25 Board, have you not, of the South Florida Water
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1 Management District?
2 A Yes, most of the meetings.
3 Q You have no notes from any of those
4 sessions?
5 A Generally not. I looked and I don't
6 have any.
7 Q Did you annotate any of the handouts
8 provided at the numerous briefings by the Sugar
9 Cane League and its proposed alternatives, or the
10 various scientists or cameo appearances by
11 Dr. Richardson, for example, at SAGE?
12 A Very often what I'll do is, if I'm
13 sitting in a meeting, I might scratch out a note
14 or something to ask somebody a question.
15 But those go in the trash at the end of
16 the day or the end of week or whenever I clean
17 off my desk.
18 I haven't -- I haven't written anything
19 to anybody on that. I report by phone or
20 in-person meetings.
21 Q How about annotating the documents that
22 are handed out?
23 A No.
24 Q Paragraph 3 is:
25 "Any and all documents relating to
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1 the input, transport or discharge of
2 nutrients from whatever source in the
3 Everglades hydrologic system, including
4 all areas of water flow in and from
5 Lake Okeechobee to the southeast
6 Florida coast and Florida Bay."
7 Were you able to locate any documents
8 responsive to that category?
9 A No, no, I wouldn't.
10 Q You mentioned at your firm you have a
11 secretary as well. Does she maintain
12 correspondence files separate from yours?
13 A No.
14 Q How about Dr. Robert, do you provide
15 him documents?
16 A Occasionally, but I only just started
17 doing that so -- in fact, it would be possible
18 that I would send him a -- something like a copy
19 of something I got at a SAGE meeting.
20 But I don't recall any correspondence
21 between us on any SWIM issues or any issues that
22 I would identify right now as being SWIM-related.
23 Q Does the EPD have any ongoing work
24 related to water-supply issues connected to the
25 SWIM plan remedies?
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1 A No, only recently, in that they asked
2 me to become involved in the lake level issue and
3 attend the workshop that the Corps had on their
4 behalf with regard to that one, because their
5 primary concern is water quantity with regard to
6 the lake levels.
7 That just started last board meeting
8 though.
9 Q Paragraph 4 is:
10 "Any and all documents relating to
11 the impacts or the effects of
12 man-induced alterations or
13 manipulations of the timing,
14 distribution, flow" -- or "volume,"
15 rather "and flow of surface waters into
16 or within the EPA due to construction,
17 operation or maintenance of the federal
18 project."
19 Do you have any documentation related
20 to that subject area other than those identified
21 in counsel's letter which is Exhibit 4?
22 A Nothing other than what may have --
23 either is in his letter or may have been handed
24 out as a part of some of the SAGE material
25 packets that I may not have read, referred to.
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1 I get some of that stuff I don't look
2 at.
3 Q Is the EAA/EPD funding in any way
4 efforts to model flow reduction or surface flows
5 as a result of BPM implementation or SWIM-plan
6 implementation?
7 A Not with regard to the Everglades
8 project.
9 However, I don't know how you'd
10 characterize it, but with regard to the lake
11 permit, there is some modeling that has been done
12 and it would reduce the quantities of water, and
13 I would suspect that the consultant doing the
14 work could -- would have a good idea of what
15 certain BMPs would do as far as the water
16 control, in terms of reducing the discharges.
17 Q What do you mean by the lake permit?
18 A Well, the EAA/EPD is the holder of a
19 permit that the Water Management District has
20 issued to Lake Okeechobee.
21 Q You're referring to the master permit
22 for lake discharges?
23 A Right, and that is -- components of
24 that deals with BPM impacts on water and
25 phosphorus quantities.
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1 So that particular group would be --
2 would have some information that might be
3 relevant and might be used in a SWIM plan -- in
4 the SWIM-plan context.
5 Q Who has done that model?
6 A Hutcheon Engineers, Dave Stewart.
7 Q Have you reviewed that model?
8 A I've had it explained to me by Dave.
9 Q What are the predictor variables?
10 A Well, I don't know how to answer that
11 question.
12 The model is-- there's two BPM
13 operational schemes. One of them deals with a --
14 targeting a number of points. You have a chart
15 that artificially sets up a pumping -- assigns
16 numbers for different things, likes you might
17 have one inch of rainfall that's worth so many
18 points, some other things.
19 You add those points up, and the
20 decision to pump or not pump is based on how many
21 points you get.
22 There's another one that deals with --
23 more with elevation and is of a simpler program;
24 and, as I've been told by Dave Stewart, is more
25 stringent and they would not pump as often.
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1 But the basis of the pumping is to --
2 or the basis of the BPM is that, if you -- is to
3 not pump during light rain events; you'd still
4 pump all you want or all you had to, not all you
5 want but all you had to, in heavy rain events,
6 but in very light rain events you wouldn't pump.
7 Then he has calculated the amount of
8 water that that would save, the percent of
9 discharge that that would save, in both cases, I
10 believe.
11 Q Those are discharges strictly to
12 Lake Okeechobee from 298 districts?
13 A Right, because we wouldn't use those
14 BMPs in the -- Presently those BMPs, I don't
15 think, are as parts of the permit for the S-2 and
16 S-3 basins.
17 But they would be the same kinds of
18 BMPs that would be done outside of those areas,
19 and in that regard that information might be used
20 in a SWIM plan assessment at some point.
21 Q Who would do that?
22 A Probably David Stewart.
23 Q For the EPD?
24 A Yes -- Well, I was too quick to say
25 that.
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1 They don't have a contract to do that,
2 and so anything like that would be -- would
3 probably have to be put out on some kind of a
4 competitive negotiations contract, unless their
5 contract was somehow extended.
6 I would rely on Mr. Charles Shoech's
7 advice as to whether we could do that or not if
8 we chose to. He's the attorney for the EAA/EPD.
9 Q Do you have any current plan to
10 recommend that?
11 A I don't have any current plan to
12 recommend it, but I believe that the EAA/EPD will
13 become more and more involved with basic
14 decisions on discharges to the south.
15 And we're already doing it in some
16 areas, like with the IFAS work, and of course
17 with Dr. Richardson's work. It seems to me
18 likely that we would expand the engineering at
19 some point to that area.
20 Hutcheon may or may not be the
21 engineers who would do the work.
22 Q I think we're at Paragraph 5:
23 "A list of all technical,
24 "professional or scientific
25 publications, articles, monographs,
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1 theses or similar papers, including any
2 such papers currently in preparation in
3 which you are identified as the author
4 or co-author."
5 Other than the one short article that I
6 utilized at Mr. Botts' deposition which you've
7 already referred to, have you published or
8 drafted for publication any other articles,
9 technical memoranda, anything of that nature?
10 A No.
11 Q Paragraph 6 is a copy of everything
12 identified in 5 pretty much, so I assume there's
13 nothing else, unless you state otherwise?
14 A No.
15 Q Paragraph 7:
16 "All documents regarding lake
17 Okeechobee or Everglades' water
18 quality- and/or water-quantity issues,
19 including but not limited to those
20 issues raise in the Florida Fruit and
21 Vegetable Association, et al.'s,
22 petition for formal administrative
23 proceedings pursuant to
24 "Section 120.57(1), Florida Statutes,
25 in the instant action."
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1 A Okay, you need to explain what that is.
2 Q Okay, the petition for formal, that's
3 the complaint filed by -- that's why we're here:
4 the challenge to the SWIM plan on behalf of the
5 Fruit and Vegetable Association, --
6 A Mm-hmm.
7 Q -- has numerous allegations of material
8 fact in dispute; asserts various errors in the
9 SWIM planning process; makes both conclusions of
10 fact and conclusions of law contrary to those
11 embodied in the SWIM plan adopted March 13, 1992.
12 A My document, the only document I have
13 with regards to that that you haven't already --
14 we haven't already talked about is -- of course
15 is the SWIM plan itself, which I think
16 contradicts itself all over the place.
17 Q Okay, is your version of the SWIM plan
18 and appendices, the three volume plus its SWIM,
19 with appendices, it's not annotated?
20 A No, I don't think so, but I did not go
21 back and look at that document prior to coming
22 here, okay?
23 What I relied on what was the stuff
24 that we had supplied in our comments back around,
25 you know -- I don't think so, is the answer, but
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1 I could be wrong there.
2 Q Okay, I would ask you, as part of the
3 reasonable compliance with the subpoena, that you
4 check it and let me know through counsel.
5 If in fact it's annotated, we'd be
6 entitled to that. I'd like to see it.
7 MR. HOFFMAN: I never thought of annotations
8 as being anything different from the document,
9 but we'd be glad to.
10 MR. FITZGERALD: They're notes.
11 THE WITNESS: I'll say this: If anything
12 I've done would be, that would be it. Normally
13 I'm not preparing formal comments
14 BY MR. FITZGERALD:
15 Q But you were for that?
16 A But I was for that one, so that would
17 be, it's very possible. I just don't recall.
18 MR. HOFFMAN: Actually, I was thinking of
19 tabbing as opposed to annotations.
20 Annotations means notes, yeah, you're
21 right about that.
22 BY MR. FITZGERALD:
23 Q Speaking of the letter you did for
24 Mr. Botts, did that go through several -- did you
25 do a draft, work back and forth on that?
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1 A I usually do.
2 Q Do you have copies of the earlier
3 drafts?
4 A Never keep them.
5 Q How about on your computer hard drive
6 or your disk?
7 A We do them, do them by word processor.
8 I could ask, but I seriously doubt it
9 was not erased, because it is a word-processing
10 system.
11 I don't type myself so --
12 Q Who does?
13 A I mean, I can, but I don't.
14 Q I can't and I do.
15 A So, you know, what -- my normal method
16 of drafting something, and normally I will draft
17 four or five or three or four, something, copies
18 of something, but I will draft it out by hand, my
19 secretary will type it, and when I get that back
20 I'll usually throw the handwritten one away, I'll
21 mark this one.
22 I'll keep throwing them away until
23 finally I'm left with the final draft.
24 Q The reason I ask, a lot of systems,
25 they automatically save the existing documents
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1 when you call up a copy to edit.
2 A I can find out. If it did, I wouldn't
3 know it, because I don't know that much about the
4 system we use.
5 But I don't think so, but I'll check
6 with my secretary.
7 Q I'd ask that you check with your
8 secretary on that.
9 A Sure.
10 Q Okay, Paragraph 8:
11 "All documents regarding
12 alternatives to the SWIM plan clean-up
13 strategies, including but not limited
14 to chemical treatment, filtration,
15 ASRs, ATSs, BMPs, and any documents on
16 the economic impact of various clean-up
17 strategies."
18 Do you have any such documents other
19 than the publicly-distributed, unannotated pile
20 from SAGE?
21 A No. Now -- no.
22 Q Has the EPD done its own analysis of
23 any of those alternatives to try and quantify the
24 benefit from the alternatives or the cost of the
25 alternatives?
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1 A Well, I'm not sure that it would be a
2 cost -- There may be a cost component that comes
3 of the BMP work that Izuno is doing. I don't
4 know that I'd necessarily rely on it if he had
5 one.
6 But certainly some of that information
7 that he develops may be used in some kind of a
8 cost assessments.
9 But the rest of them, no.
10 Q Does the EPD have any plans currently
11 to field-test or bench-test chemical treatment
12 for filtration processes?
13 A Well, I mean I could say no, it
14 wouldn't surprise me if we didn't get one in the
15 next little while.
16 Presently the answer is no.
17 In actuality, it's something the league
18 has been looking at, as I understand it from
19 presentations that they've made, so anything that
20 the league looks at is always subject to them
21 bringing before the Board of Supervisors, the
22 EAA/EPD, and them getting interested in it.
23 So presently, no, but possibly in the
24 future.
25 Q The Sugar Cane League is represented on
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1 the Board, is it not?
2 A On the Board of?
3 Q The EPD.
4 A Not really.
5 Q Are any employees or members of the
6 Sugar Cane League to your knowledge on the Board?
7 A Well, all of the members -- Well, I
8 don't know if all of them, but the members of --
9 the people on the Board of the EAA/EPD may also
10 belong to the Florida Sugar Cane League as either
11 growers, or they may be employees of corporations
12 that are members, either as growers or processors
13 or both.
14 But as far as the way that they're set
15 up, the way the EAA/EPD is set up is a
16 voter-elected Board, so those people are not
17 there to represent their companies, they're there
18 to represent the growers who elect them to the
19 Board.
20 Q Is that by district within the EAA
21 or --
22 A No.
23 Q -- EAA-wide?
24 A It's EAA-wide.
25 Q How often are they elected? What's the
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1 term of office?
2 A I think it's four years.
3 Some of them were two originally,
4 because the original setup was to stagger them,
5 but I believe it's four years now.
6 Q How large is the Board?
7 A Five members.
8 Q Who are they?
9 A Bob Euker --
10 Q Mr. Euker is the vice-president of
11 corporate affairs for the United States Sugar
12 Corporation?
13 A That's correct.
14 David Beardsley, he a grower; Wayne
15 Browning, I don't know his exact title but I
16 think functionally he's a farm manager for Aduda
17 and Sons; Johnny Schlechter, who is a grower of
18 vegetables and I guess cane; and formerly Arthur
19 Kirstein, who was the chairman, who was an
20 officer in Okeelanta Corporation, but he resigned
21 at the last board meeting so that position is
22 presently, as far as I know, vacant.
23 Q And Okeelanta is a wholly-owned
24 subsidiary of Flo-Sun?
25 A As far as I know, that's correct.
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1 Q Is there a mechanism for someone to be
2 appointed to fill that position, or there have to
3 be an election?
4 A The information I have, which may or
5 may not be accurate, what I was told when I asked
6 the question a few weeks ago was that someone
7 would be appointed from the Board, the Board
8 would appoint someone, and then the next
9 elections, next grower election I think are in
10 July, then they would --
11 Q Fill it then?
12 A -- fill it in then.
13 Q Is the Board routinely briefed by the
14 Sugar Cane League or member growers in the EAA
15 regarding research programs?
16 A I don't know that they're routinely
17 briefed.
18 People who are -- who represent the
19 Sugar Cane League address the Board from time to
20 time on different issues.
21 Q That by invitation, or do they request
22 to appear?
23 A It's not quite as rigid and formal as
24 that.
25 We have an agenda, and we stick to the
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1 agenda, but if any grower member or
2 representative of any grower member really has
3 something to say, sometime before the end of the
4 day he'll have an opportunity.
5 Usually they will pick a point when we
6 are talking about something, and they will talk
7 during that period.
8 Q How often does the Board sit?
9 A Once a month.
10 Q Is that like noticed in the Florida
11 Administrative All-Weekly, all that other stuff,
12 just like the Water Management District?
13 A Yes.
14 Q So it's my understanding then there's
15 no current work anywhere or plans to look into
16 ASR, STAs or BMPs, other than the ongoing IFAS
17 studies for BMPs?
18 A Nothing that has been brought before
19 the Board and where the Board has voted an action
20 on it.
21 Q There a proposal pending by somebody?
22 Is there a scoping document by any of those
23 alternatives?
24 A Well, like I say, there's some work
25 that's been done by the League, and I know that
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1 Dave Anderson was doing some work.
2 But it's never come before the Board to
3 try to get Board approval for some of the stuff I
4 understand he was doing for the League, which is
5 not going to be done anymore.
6 Q Who's Dave an Anderson?
7 A He's with IFAS.
8 Q What type of work was that?
9 A Something to do with the settling
10 rates, and he's been before the District and
11 fourth stage and everything else, on -- it's the
12 jar test on chemical treatments, different kinds
13 of compounds and what they may or may not do with
14 EAA waters.
15 Q Was it your understanding he was doing
16 that on behalf of the League?
17 A That was my understanding based on my
18 conversations with him.
19 Q Why do you not anticipate that going
20 any further?
21 A I met with Dr. Anderson a few months
22 ago and he indicated that he was interested in
23 the EAA/EPD picking it up, because he felt like
24 the League would not continue it, that's all I
25 know.
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1 And he -- I asked him how much he
2 wanted and it was, I think it was something like
3 $230,000 a year or something like that, so I left
4 it up to him to go and bring it up with the
5 Board. I didn't.
6 He never did, and they've never acted.
7 Q He actually made a presentation to the
8 Board?
9 A No, not yet. He did to me.
10 I mean, he just told me what he wanted.
11 Q What would your recommendation be to
12 the Board if that proposal as you discussed with
13 him were made, if that's not too speculative?
14 A Well, you know, it would be like
15 anything else: He'd have to show where it fits in
16 our overall scheme of things; what the value of
17 it would be; and whether or not we could get
18 information soon enough to do any good; whether
19 it was work that somebody else was already doing.
20 Right now the Water Management District
21 is doing something like that already. That
22 wasn't the case when I talked to him.
23 So he'd have a pretty heavy, pretty
24 heavy way to go to try to get that kind of money.
25 Q Do you have any documents, studies,
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1 surveys or data which reflects the impacts the
2 SWIM plan, if implemented, would have on the
3 agricultural activities of the FFVA growers?
4 A No.
5 Q Including economic impact?
6 A I do not.
7 Q Does the EPD have or the FFVA have any
8 work ongoing to assess economic impacts
9 industry-wide or specific to its membership?
10 A The EAA/EPD does not, as far as I know.
11 I don't know what the -- I do not deal
12 in the economic arena, so I don't know what FFVA
13 has.
14 Q Next, Paragraph 10:
15 "All documents disseminated,
16 distributed or otherwise provided to
17 the members of the FFVA, public, public
18 agencies, governmental entities, print
19 or electronic media, espousing any
20 position with respect to the scientific
21 basis, feasibility, economic impact,
22 alternatives or other issues related to
23 the SWIM plan."
24 Do you have any such documents?
25 A Well, any such documents would have
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1 been disseminated by Mr. Botts, okay? Whatever
2 he supplied you with is all that I would know
3 about.
4 Q Did you craft any such documents for
5 Mr. Botts, publicity releases, PIO statements,
6 anything of that nature?
7 A I don't recall doing that.
8 Q Have you addressed the Board of South
9 Florida Water Management District on these
10 issues?
11 A Probably.
12 Q Do you recall when that was?
13 A No, it seems like I got up once or
14 twice and told the Board it was going to cost too
15 much money or something like that, but I don't
16 recall specifics.
17 It would have been a very short
18 presentation.
19 Q You mentioned something along those
20 lines earlier. You said one of the things you'd
21 be advising members on as a result of sitting on
22 the STA design committee and subsequent groups
23 was on the matter of overall cost of the program.
24 When you say that do you refer to the
25 cost of constructing STAs or, you know, the
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1 restoration program as currently envisioned in
2 the SWIM plan under challenge?
3 A Right.
4 Q What do you see or foresee the costs
5 being?
6 A Well, given the nature of the District,
7 I mean realistically, and I have to approach this
8 as a part of the kinds of things I do, which is
9 to manage environmental programs and have to do
10 some predictive costs, and costs sometimes, it's
11 just a feeling, but it usually comes out pretty
12 close if you've done enough of them, the District
13 usually tends to overestimate the cost on the
14 short end as to when you look at a budget,
15 there's a lot of apparent fat it.
16 They'll have big contingency dollars
17 and some other stuff, but then when you get
18 around to what happens, normally takes them a
19 whole lot longer to do the project than what they
20 projected, it tends to eat that up; then it may
21 go up.
22 Q This is known as King Tut's rule?
23 A And I think the plans that they have on
24 the table will at least be the 400-plus million
25 dollars that we've talked about over the years,
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1 and probably a little more.
2 Q What's the biggest project you ever
3 costed out in the EAA?
4 A I don't know, several million dollars,
5 probably.
6 Q In looking at this 400-plus million
7 dollar project, did you make allowances for the
8 possibility of lands swamped by the State of
9 Florida to offset the land acquisition costs
10 reflected in the SWIM plan?
11 A No.
12 Q Would you agree that the land
13 acquisition cost is the single major cost of the
14 project start-up?
15 A It may be on the front end, but it's
16 hard to say what kinds of construction problems
17 are going to run into.
18 They didn't do a good -- very good job
19 on the Holy lands in terms of how that project
20 was designed and constructed.
21 And also the -- you may necessarily,
22 because we don't have a pilot plan to rely on in
23 terms of development and operational criteria,
24 they may decide as they go along they need more
25 stuff; it just may get to be a much costlier
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1 project than we've predicted.
2 Q You understand that by the time the
3 first STA is supposed to be built we'll have
4 almost three years of data from the ENR, don't
5 you?
6 A Well, I understand that before the
7 E -- before you have any STAs built you reach a
8 compliance point in your settlement agreement and
9 the standard may change.
10 So I mean, I don't know where this
11 thing is going.
12 Q What compliance point is that?
13 A It's my understanding of the settlement
14 agreement your compliance point, this is what's
15 been explained to me by federal people, is that
16 the discharge limits, you'll go out in the marsh
17 and the fourteen points in Loxahatchee or
18 whatever, you'll make a judgment as to the --
19 whether it's -- it's above a certain level of
20 concentration of phosphorus in the marsh or below
21 that certain level. That I believe is in '96 or
22 '97 that you will do that.
23 Then, if it's a violation, and of
24 course your ENR -- I mean your STA won't have
25 been built, so I don't know exactly what's
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1 supposed to have driven the numbers down --
2 Q When do you think the STA is supposed
3 to be on-line?
4 A I don't know when they'll be on-line.
5 Q Under the SWIM plan, what does the SWIM
6 plan say?
7 A I'd have to look at it.
8 Q Okay.
9 A But I was told that about the time that
10 the STAs will be constructed will be the
11 compliance point, okay?
12 Q For the fifty parts per billion?
13 A For the fifty parts per billion.
14 Q The interim number?
15 A The interim number.
16 If it's determined that that number
17 is -- that you're in violation or you have an
18 exceedance of those numbers, even though you
19 won't have had time for that STA to take hold and
20 do whatever it's going to do, that you will go to
21 a fifty parts effectively all time, all places
22 standard.
23 That would, according to the design
24 engineer, make it a dramatically different
25 program, STA program than the one he's designed
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1 for and the one that will have been constructed.
2 Q So you're assuming now that the STAs
3 will be constructed before that compliance test
4 date?
5 A But not operated.
6 Q And are you telling me that that's your
7 understanding of what the SWIM plan says, or the
8 settlement agreement in the federal litigation?
9 A I know that it was reported to me that
10 was the understanding of the settlement
11 agreement.
12 Q Okay, what does the SWIM plan say,
13 since that's what is being challenged here, not
14 the federal litigation?
15 A I'd have to go back and review those
16 dates.
17 Q Okay.
18 We already talked about your CV, which
19 is the next. You said that's pretty much
20 current?
21 A Pretty much.
22 Q There aren't any publications listed
23 there, but we've covered that?
24 A No.
25 Q There any other current employments or
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1 change in employment, sort of the front end of
2 that, that you would alter?
3 A No.
4 Q Do you have any documents other than
5 those identified in the April 6 letter from
6 counsel or those we've previously discussed upon
7 which you will rely to formulate your expert
8 opinions and conclusions relating to the
9 regulatory and rule-making requirements
10 applicable to DER and the Water Management
11 District with respect to the SWIM plan process?
12 A Well, I expect to get more documents in
13 between now and the hearing date, and probably
14 would rely on that.
15 Q What are you anticipating in the way of
16 type and source of those documents?
17 A Well, for one thing, this annual report
18 of Curtis Richardson for this last year will be
19 completed, like I say, in the next few days. I
20 certainly would review that.
21 Q Let me ask a question on that before
22 you go on:
23 You said you have the draft report.
24 Was that submitted to you for review and input?
25 Are you critiquing it?
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1 Why do you have his draft report?
2 A Because he had a -- I think he had an
3 obligation as a part of his grant to submit to us
4 the report, and so he got it in sort of under the
5 wire, but it was -- it was not the final final.
6 But the Board was satisfied that it
7 fulfilled his requirements, and he's coming back
8 with another -- with the final final several
9 months later; it gave him a little more time.
10 But I do not edit, critique or comment
11 back to him in any way on his reports.
12 Q Has the EPD funded in any way, other
13 than the grant to Dr. Richardson, any work by the
14 Duke Wetland Center?
15 A The EAA/EPD? I don't think so.
16 (Short recess)
17 BY MR. FITZGERALD:
18 Q Has the EPD given any grants, gifts or
19 funding in any other form whatsoever to anyone
20 associated with the Duke Wetland Center other
21 than Dr. Richardson?
22 A Not to my knowledge.
23 Now there was a period of time when I
24 did not work for the EAA/EPD. If they did, I
25 didn't know about it. I haven't heard of it.
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1 Q Have you reviewed any draft reports
2 from the Duke Wetland Center other than the '91,
3 '92, '93 formal reports by Dr. Richardson?
4 A Now -- not that I recall.
5 Now they submit a monthly progress
6 report, but it's not really technical in nature,
7 it's more what the status is.
8 Like when the hurricane blew down all
9 of his equipment or something, he writes: The
10 hurricane blew my equipment down.
11 It's a one-page thing, not scientific;
12 usually developed by Lisa Phelps.
13 Q You don't maintain that -- copies of
14 that in your files?
15 A There may be copies of that in my file.
16 It's just a quarterly -- I mean a
17 monthly single sheet.
18 Mr. Shoech again would be the
19 appropriate source for all of that, since he's
20 the keeper of the official records.
21 Q It's not exactly the way it works. If
22 you've got them, we have asked for them, you
23 produce them. You don't send us to somebody
24 else.
25 Otherwise, you kind of get into one of
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1 these shell games.
2 A Let me explain something to you then:
3 You're talking about my EAA/EPD files, okay?
4 Maybe it was misunderstanding on my part, but I
5 thought I was here today on FFVA, and those are
6 the files we reviewed.
7 I tried to go through and figure out
8 what was appropriate and what wasn't.
9 The EAA/EPD files are a separate file.
10 I didn't consider those. I don't look at those
11 monthly reports in developing any kind of an
12 opinion that goes to the FFVA or anybody else.
13 And that's why they weren't included.
14 Q So somehow in your mind, when you
15 testify, you're going to be able to totally
16 exclude everything you know about the SWIM
17 process, the scientific background, regulatory
18 operations and rule-making obligations of the
19 District and DER from any work you've ever seen
20 or had access to while you've been working for or
21 on behalf of the EPD?
22 A No, but I'm going struggle mightily.
23 The annual reports there that you have
24 from Duke that I listed have technical
25 information in there that will be used.
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1 I seriously doubt that I will utilize
2 any of the monthly report information on Lisa
3 Phelps as to whether the hurricane blew away
4 something or whether Dr. Richardson was going to
5 be in Florida for two weeks or something like
6 that.
7 That's not part of my analysis, I won't
8 remember it. That is simply a reporting
9 management tool to make sure that we're
10 up-to-date; that he's where he's supposed to be.
11 The technical information that I've
12 reviewed that I would use in formulating an
13 opinion from Dr. Richardson is wholly and solely
14 contained within the documents that you have: his
15 annual reports and things that he may or may
16 not -- or he has discussed with me over the
17 years.
18 Nothing in writing other than that,
19 that I recall.
20 Q Okay.
21 Counsel, to the extent that that in
22 fact is the case, there's likely no problem.
23 To the extent it may prove not to be
24 the case, based on the hearing officer's ruling
25 on April 2nd we might be forced to move for
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1 exclusion or limitation on anything else that has
2 not been produced.
3 I can't tell now though that there's a
4 problem, necessarily, but I'm reserving our right
5 should that come up.
6 MR. HOFFMAN: I'll check with Mr. Barber to
7 try to ascertain if there's anything.
8 From the way he explained on the phone
9 and personal conversation, as now on the record,
10 I never thought that those dealt with this case.
11 I didn't --
12 MR. FITZGERALD: It may not.
13 You know, when you don't have them
14 here --
15 MR. HOFFMAN: I'll ask him to send me an
16 example. We'll send you a copy.
17 BY MR. FITZGERALD:
18 Q I guess my final question with regards
19 to Exhibit 3 is: Have you withheld production of
20 any documents otherwise called for by Exhibit 3
21 on the claim of privilege against disclosure?
22 Do you understand what I mean by
23 privilege?
24 A No.
25 MR. FITZGERALD: Counsel, explain privilege
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1 to him.
2 MR. HOFFMAN: Well, we have not --
3 MR. FITZGERALD: Counsel are you withholding
4 anything under the claim of privilege?
5 MR. HOFFMAN: No.
6 MR. FITZGERALD: So I need not expect a
7 privilege list?
8 MR. HOFFMAN: No.
9 MR. FITZGERALD: That's the easy way.
10 Did we actually make an Exhibit 5 -- 4?
11 MR. HOFFMAN: The letter, yes.
12 MR. FITZGERALD: I can take a ten-minute
13 break, see if my fax showed up. I think we can
14 certainly be done within the next half-hour.
15 Take five.
16 (Short recess)
17 BY MR. FITZGERALD:
18 Q Mr. Barber, recently you accompanied
19 trips in the Everglades Agricultural Area by a
20 sampling team on behalf of the United States and
21 the allied respondents and respondent intervenors
22 in the SWIM plan challenge that was permitted by
23 order of the hearing officer to collect certain
24 soil and water samples, did you not?
25 A Yes.
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1 Q What was your purpose for joining the
2 group?
3 A To observe the sampling and to take
4 notes on what was happening and take some
5 pictures.
6 Q For whom were you doing that?
7 A Florida Fruit and Vegetable.
8 Q Were you also providing the same
9 information to the co-op?
10 A I have not provided that information to
11 the co-op.
12 I have not talked with the FFVA people
13 to see exactly what kind of -- whether that's
14 appropriate or whatever.
15 Q Okay, who has the photos you took?
16 They were strictly Polaroid?
17 A Yes.
18 Q Who has those?
19 A I still have them.
20 Q And who has the field notebooks?
21 A I still have the field notebook.
22 The photographs are currently attached
23 to the field notebook. I have it.
24 I haven't had a chance to talk with
25 counsel about it, so I haven't done anything with
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1 it yet.
2 MR. HOFFMAN: Let me -- Mr. Barber did that
3 at my request, just to -- and what it will be
4 used for has not been determined.
5 In other words, at my request he was
6 supposed to just take notes and take photographs.
7 If they were to be used for anything, certainly
8 we'd make them available.
9 But I'm concerned here about
10 work-product situation where, at my request, one
11 of my people took some pictures and did some
12 notes.
13 We've not had a chance to talk about
14 those yet as to what purpose they will end up
15 being used for, and they were not produced, they
16 were just done a week or so ago, because I would
17 raise a privilege on those.
18 But I would certainly allow you to --
19 not object to questions about what he saw or did,
20 but those pieces of paper and things I'm
21 concerned about.
22 I mean, they're not here today for that
23 reason.
24 And would be glad to work with you on
25 that.
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1 But right now, I don't know what we're
2 going to do with them; haven't had a chance to
3 talk with him.
4 MR. FITZGERALD: I understand the concern
5 about not having breached disclosure on how you
6 might use them. My understanding of Florida law
7 is, once you designate an expert, work-product
8 privilege tends to abate dramatically.
9 So I'm not sure that that necessarily
10 is a valid privilege against producing them.
11 There may still be some relevancy
12 issues, depending on how you use them, that need
13 to be sorted out. I think we're probably entitled
14 to them.
15 You know, I'll go ahead with some
16 questions now and, you know, you can look at it,
17 then get back to me later when you decide how, if
18 and when -- or you may just decide to provide
19 them.
20 MR. HOFFMAN: Okay, right.
21 It's not going to be the biggest
22 turning point in the case.
23 MR. FITZGERALD: I didn't suspect it would
24 but, you know, I got to ask, we're here.
25 MR. HOFFMAN: Right.
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1 BY MR. FITZGERALD:
2 Q Did you take notes each day of the
3 entry, all seven days?
4 A Yes.
5 Q You took photos each day of the seven
6 days?
7 A Yes.
8 Q Are you familiar with the EPA protocols
9 on collection of water samples when one is going
10 to test for the presence of mercury or mercury
11 compounds?
12 A I had a-- There again, I'd have to
13 defer to counsel on this.
14 I mean, I'll just tell you I have it.
15 I had one of -- Ray Robert write up for me the
16 kinds of things I needed to be looking for for
17 purposes of what the appropriate protocol might
18 ultimately wind up being.
19 But I don't profess to be an expert on
20 mercury, so I was more there -- that was more for
21 the purposes of: Hey, if you see them doing this,
22 make sure you make a mental note of it.
23 But I am not aware personally of the
24 things that you should do or not do in mercury
25 sampling.
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1 Q Based on your understanding, either
2 from Dr. Robert's write-up for you or your
3 general background, did you see any violation of
4 the EPA protocol in collecting water samples?
5 A I don't know what the EPA protocol is.
6 Based on what I saw and my experience
7 as a sampler and in running field sample,
8 supervising field samples in the State for many
9 years, there may be some peculiarities of mercury
10 that I don't understand, but it was -- I did
11 develop some opinions of the sampling as a
12 general sampling rule.
13 Q Are you speaking of the waters samples
14 now or the soil samples, sediment and cores?
15 A Well, the sediment and cores, certainly
16 I had a problem with the water sampling, I had a
17 problem with too.
18 Q What was your problem with the water
19 sampling?
20 A Well, the general problem was
21 inconsistency. There was no sample planned. I
22 didn't see any evidence of what the sampler was
23 hoping to accomplish.
24 Samples were taken often next to
25 highways. There was no regard for distance from
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1 pump stations; no regard for water depth; no
2 regard for water clarity.
3 The sampler was wading around in the
4 canal. He was trying to sample -- I didn't see
5 any field notes; I saw no other field tests that
6 would tell him whether or not he'd stirred the
7 sediments up; whether the replicates would
8 actually be replicates or whatever.
9 So overall, there may be other
10 problems, I'd have to refer back to my notes, but
11 those were the some of the general things.
12 Q How about with respect to the soil
13 samples? What if anything did you observe about
14 that that concerned you?
15 A Well, okay, we're in an area where I
16 made a note, not make a judgment, because I have
17 sampled a lot of water over the years; I have not
18 sampled a lot of sediment soils over the years.
19 But, so I can only just see something
20 and observe it, and somebody else would have to
21 determine whether it was appropriate or not.
22 Carrying sampling equipment rolling
23 around in the back of a pickup truck is unusual;
24 not cleaning sampling equipment, rinsing it
25 between stations is unusual.
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1 Not preserving samples, unless you are
2 absolutely sure that no preservation would be
3 required for the constituents you're going to
4 run; say, for instance, total phosphorus, you
5 might not think you needed it, but for a lot of
6 things you need some kind of preservation, either
7 ice or acid.
8 I didn't see any evidence, though it
9 could be, you know, sample containers and so
10 forth were acid-rinsed, but certainly the
11 sampling equipment was not.
12 Trays were dirty. Even the second day,
13 started with dirty sampling equipment.
14 There was not a great deal of
15 consistency in the sediment sampling. Dr. Jones
16 would wade around out in the canal, he had on a
17 pair of gloves that came up to his wrist, and he
18 would stick his arm down to halfway between his
19 elbow and his shoulder and very often grab
20 sediment, put it in the little container cup,
21 exposing -- certainly I know that the water --
22 there was a water exchange between the sediment,
23 his arm, his shirtsleeve and usually his hand,
24 because sometimes I'd see him take the glove out
25 and pour it off as you would a boot that filled
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1 with water if you waded with it over the top.
2 I can't attest to the fact that these
3 would change the analytical results, but they
4 were unusual in my experience as a sampler and
5 worth noting.
6 There were a few other things: the --
7 the water depth, you know, he didn't take into
8 account water depth. I know one case he used a
9 plunger, some kind of a long tube, to take a
10 sediment.
11 The other I saw, he just waded around,
12 grabbed them with his hands.
13 I don't know how he chose his sites. I
14 don't know what the nature of the sediment were.
15 I simply noted those things.
16 He wouldn't always take his samples in
17 the same place. He might take a water sample in
18 one area, fish sample with the other area.
19 And I don't know what he's doing with
20 fish, but obviously he couldn't draw a
21 correlation between the two.
22 Probably other things, stuff like that,
23 more stuff that I found but I don't recall
24 without referring to my notes.
25 Q Did you observe sampling on behalf of
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1 the co-op on some days by a team from FSU, was
2 it?
3 A Yes, I didn't really follow them around
4 and look at them, but I mean, I obviously could
5 see them from where I was most of the time.
6 They seemed to use, and I asked them a
7 couple questions, but they used a pump and they
8 would pump water through the pump for a period of
9 ten minutes, and then they would bag their stuff
10 back up with some kind of a bag during transport,
11 their tubing and so forth, so they were obviously
12 attempting to flush all of the former water
13 through the system.
14 They didn't take -- they didn't do
15 everything that Dr. Jones did. They didn't do it
16 necessarily in the same places.
17 After a while I think they did start to
18 go behind him, take some water samples.
19 I noticed for instance a difference in
20 the gloves. They had some kind of a glove, FSU
21 guy, went up to his shoulder, I think he got it
22 from a veterinarian, that he would use -- I heard
23 he got it from a veterinarian, or the co-op
24 did -- that he used when he had to reach down in
25 the water.
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1 Their water-sampling in the bottle
2 techniques, except for the wading part, seemed to
3 be very similar. Both of them held the water
4 containers below the surface, filled them, looked
5 like at approximately the same depth.
6 But a lot of the FSU stuff seemed to
7 come through that pump.
8 Q Did you take detailed field notes on
9 the sampling techniques of the FSU group?
10 A I did not. I was not there to do that.
11 I was not instructed by counsel to do -- and I
12 couldn't be both places. They were at different
13 places at different times.
14 So I did not take notes on them.
15 Q Did you ever see the FSU group violate
16 any of the protocols that were described to you
17 by Dr. Robert?
18 A No, but I would need to go back and
19 review those.
20 Q Do you recall if any of those written
21 guidelines mentioned using suntan oil, suntan
22 lotion?
23 A I recall that you're not to touch the
24 samples, not to smoke around the samples.
25 I'd have to go back, but I didn't
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1 notice if anyone -- I noticed that Dr. Jones
2 made a point of not using suntan oil. I did not
3 notice if the FSU people did.
4 I don't know that that would have an
5 effect, but certainly if I had noticed Dr. Jones
6 doing it, I would have noted it in my notebook as
7 an irregularity and something to be examined.
8 Q Do you recall, at the time of the
9 fabled incident of the two snakes in the water,
10 that the FSU team wanted to collect bottle
11 samples in that vicinity because Dr. Jones had
12 also collected water samples from that area?
13 A I believe they did.
14 Q Did you see the technique that the
15 sampler used in order to fill the bottle?
16 A Yes.
17 Q Did you note that he stayed on the bank
18 and, with an open bottle, broke the interface
19 between air and water in violation of the
20 collection standards?
21 A Yes.
22 Q Because he -- well --
23 A I noticed that he stayed on the bank.
24 That's when he had the long glove on.
25 He's a very tall person, so he could
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1 reach out.
2 I noticed that he probably got the same
3 distance that Dr. Jones did, more or less,
4 because he was well out into the canal, and he
5 did on that occasion take the sample.
6 I did not -- was not watching him
7 closely, but the way he was standing and the way
8 he was leaning over, would have been very
9 difficult for him not to have broken the
10 interface with the jar.
11 Q Well, he had taken the cap off before
12 he reached out because he had only one arm out
13 over the water, correct?
14 A Yes, he had one arm over the water.
15 Q So he could not have capped the bottle
16 before bringing it up filled and could not have
17 inserted it capped without his other hand?
18 A I would -- I don't know how he would
19 have. I can't think of a way he could have.
20 Q During the period that the testing was
21 ongoing in the EAA, there were sustained
22 crop-spraying operations around the EAA, were
23 there not?
24 A Yes.
25 Q Do you know what they were spraying?
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1 A No.
2 Q Do you know what at that time of year
3 the growers in the EAA would customarily apply by
4 ag plane?
5 A I don't know.
6 There were also, there were fires from
7 time to time in the area and ash falling at one
8 station I recall; noted it in my notebook.
9 I think I did.
10 Q You have stated the opinion, have you
11 not, that should STA-1 be expanded to the full
12 7,500 acres contemplated by the SWIM plan, that
13 the Atlantic Sugar Mill would have to shut down,
14 is that correct?
15 A It would surprise me if they didn't.
16 Q Why is that?
17 A All I can go by, and this is based on
18 my association with Sugar before, was that the
19 Atlantic Mill had shortened its number of days of
20 operation, and I don't remember from what to
21 what, but considerably after the Knight tract
22 came off line.
23 And I know that their general manager
24 quit, and he didn't leave the area; I mean, he
25 took another job, I suspect that he knew that
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1 there were problems.
2 But I know based on conversations with
3 mill people over the years when I was there that
4 you have a minimum level of cane supply to a mill
5 before it, as an entity, ceases to be a viable
6 operation, and based on -- I wouldn't call this
7 an expert opinion, but based on one who's been
8 around the operation quite a bit, I suspect that
9 that would be the case: They would not survive
10 another loss of acreage.
11 It's not a very big mill.
12 Q Is the issue the number of acres
13 supplying the mill or the quantity of cane to be
14 ground?
15 A Well, it's the same thing.
16 Q Is it?
17 A Mm-hmm.
18 Q Over the last ten years, or certainly
19 the period in which you were employed by the
20 Florida Sugar Cane League, did not yield per
21 acre, both in tonnage to be ground and net yield
22 of sugar at standard temperature, increase every
23 year?
24 A The net yield increased, and what else
25 did you say?
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1 Q Gross acreage; gross tonnage per acre.
2 A I don't know about gross tonnage per
3 acre. I wouldn't have -- I didn't work in the
4 ag research group, so I wouldn't have --
5 necessarily have seen that number.
6 Q Assume that in fact that's what the
7 data from the industry provided to the Department
8 of Agriculture shows: that the gross tonnage
9 sugar cane to be ground per acre has gone up
10 steadily, and also the yield per acre has gone
11 up, and I think you can assume somewhat of a
12 lineal --
13 A The yield has gone up, or until a few
14 years -- Now it may be back down, now that
15 they're going to mechanical harvesting, I don't
16 know.
17 Q You're aware, are you not, that they're
18 having another record year; the U. S. sugar
19 production was expected to hit a record high this
20 year?
21 A I'm not aware of that.
22 Q It says right here.
23 A I don't get their literature.
24 Q If efficiencies per acre continue to go
25 up, in fact it would be possible for a mill to
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1 survive on less acreage, would it not?
2 A It would be possible, but you're
3 talking about, you know, if efficiencies go up
4 from, in you're going up from ten percent to
5 eleven percent or something like that, in terms
6 of sucrose, and you're reducing the acreage that
7 services the mill by, you know, a huge percent,
8 overall, it doesn't necessarily translate that,
9 in terms of the money into the business, that
10 that mill will maintain viability.
11 The other thing of course you don't
12 know is what it would be, how well would the
13 farmers that service that mill be doing?
14 I mean, U. S. Sugar doesn't grind at
15 Atlantic, so whatever is happening at U. S. Sugar
16 Corporation as far as I know would have nothing
17 to do with mill efficiencies at Atlantic, unless
18 they decided to send sugar to Atlantic.
19 So it would be up to those individual
20 growers how well they were doing, but all I can
21 -- the only thing I know about it, if you want
22 to know how I would test the hypothesis they
23 would be in trouble, is to try and determine how
24 many days more they would be shortened.
25 I mean, at some point it's just the
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1 costs have got to be out of line with production.
2 Q During the testing program in the EAA
3 you made a comment that sample selection was
4 biased and that this was true in the past as
5 well.
6 What bias in the selection of sampling
7 sites during the seven-day EAA testing program in
8 this case were you referring to?
9 A Which sampling are we talking about?
10 Q The sampling by the United States in
11 the EAA --
12 A Dr. Jones, the two days I spent?
13 Q Yes.
14 You were only there two days?
15 A I was only there two days.
16 Q I'm sorry, okay, I asked if you were
17 there the full seven days.
18 A I'm sorry, I misunderstood the
19 question. I was only there for the two days.
20 Q Kind of surprised me.
21 A No, no, I was not there for U. S. Sugar
22 or any of that.
23 Q For those two days what bias did you
24 apparently, or believe you detected in the
25 selection of sampling sites for the selection of
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1 samples by the sampling team for the United
2 States on those two days?
3 A The United States sampling team, the
4 first station, first thing right off the bat,
5 first one I went to was Roth Farms. They chose a
6 site to sample that was -- that received run-off
7 from old Highway 80.
8 And I would have expected, I don't know
9 what kind of fertilizer, I don't know what comes
10 through, I was watching it, battery trucks came
11 by while I was standing there, all kinds of
12 stuff.
13 So I don't know what's going on on
14 Highway 80, but certainly that is not a
15 farm-field situation you could apply anywhere
16 else except on the border of Highway 80 up and
17 down the road.
18 Why that site was selected I could not
19 imagine, since I had acres and acres of open
20 farmlands. If you wanted to deal, why would you
21 deliberately choose a site like that?
22 That led me to believe -- Then later
23 on, the way that the fields would be selected,
24 none of the main canals, if possible; it appeared
25 as though the sampler would reject an opportunity
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1 to do a main canal and go into some kind of a
2 farm canal that may or may not had a whole lot of
3 water, and would probably have a lot less to do
4 with the discharge than anything else.
5 So that could be my problem, that I
6 didn't understand the basis of the study,
7 admittedly, but it appeared to me from my casual
8 observance that they were deliberately choosing
9 sites that may give them worse results.
10 (Short recess)
11 BY MR. FITZGERALD:
12 Q When you said that the first site of
13 Roth Farms was influenced from Highway 80, did
14 you mean by surface water flowing off Highway 80
15 or the influence of traffic on Highway 80?
16 A Okay, the first -- the canal question
17 was -- is a canal that runs parallel to
18 Highway 80.
19 There's no farm-field ditch between the
20 highway, there's no even -- not even a rolled
21 ditch. There's an embankment, so that the water
22 runs straight down.
23 Anything spilled on the highway, now I
24 don't know how sensitive these tests area,
25 everybody talks about not smoking or getting
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1 around it, but anything that happens on
2 Highway 80 would be dumped right in that canal,
3 first rain, and that would not be a farm impact.
4 Q You remarked at the same time that this
5 did not surprise you because there had been
6 earlier selection of biased samples.
7 When prior to that date, starting at
8 the Roth Farm, had you observed sampling by the
9 United States on the basis of biased sampling
10 selection techniques?
11 A I don't recall right now what I was
12 talking about.
13 MR. HOFFMAN: I didn't really hear him say
14 that, but if he did, maybe I don't remember it.
15 But whatever he did is on the record,
16 I'm sure.
17 BY MR. FITZGERALD:
18 Q During the study there was comment, or
19 during the entry, during the two days that you
20 were present there was comment about the odor of
21 hydrogen sulfide off of tilled fields.
22 You made a remark that that is the
23 normal smell for a tilled field, is that correct.
24 MR. HOFFMAN: He didn't make that comment.
25 THE WITNESS: No.
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1 MR. FITZGERALD: Counsel, you want to
2 testify? Put up your hand, we'll swear you in.
3 MR. HOFFMAN: I object to the form of the
4 question. I do not recall him saying that.
5 MR. FITZGERALD: Counsel, you were not
6 there. You left the very first day, Counsel.
7 MR. HOFFMAN: I'm objecting on the ground
8 that the way the question is phrased, there's an
9 inference that this witness said that and there
10 is an improper question, and it's not based on
11 proper predicate and -- but the witness can
12 answer whatever he wants to answer.
13 BY MR. FITZGERALD:
14 Q In your experience in the EAA, do
15 tilled fields emit a smell redolent or associated
16 with hydrogen sulfide?
17 A Not tilled fields, no.
18 Q What fields in the EAA do you associate
19 that smell with?
20 A Not with fields.
21 Q What do you associate it with in the
22 EAA?
23 MR. HOFFMAN: Objection, there's no
24 predicate that he associates it with anything.
25 MR. FITZGERALD: Okay.
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1 MR. HOFFMAN: But he may answer the
2 question.
3 BY MR. FITZGERALD:
4 Q I'll rephrase the question:
5 Have you ever detected the smell of
6 hydrogen sulfide in the EAA?
7 Are you familiar with the odor of
8 hydrogen sulfide, often referred to as the smell
9 of rotting eggs?
10 A Well, I know what hydrogen sulfide
11 smells like.
12 Q You looked perplexed. I didn't know
13 which part of the -- We've established the
14 predicate: You're familiar with the smell.
15 A I smell things everywhere, you can't
16 get away from it.
17 Certainly the millponds have an odor to
18 them.
19 Q How about the fields themselves?
20 A Fields, no, wouldn't have an odor to
21 them, not like that.
22 Maybe the canals, if you waded in the
23 canals you get -- the farm canals, you'd probably
24 get that kind of an odor.
25 Q What causes that in the farm canals?
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1 A It's the same thing everywhere, you
2 have quite a bit of sulfate in the water and you
3 take that up to where there's no oxygen and
4 you'll get, at some point, hydrogen sulfide as
5 the oxygen has been grabbed off of the sulfate.
6 So in an anaerobic condition you would
7 expect where you have high sulfides, which you do
8 out there in the groundwater, and I don't
9 remember the exact numbers but I've tested for
10 that in groundwater sampling for the mills, and
11 you get some hydrogen sulfide smell.
12 Q Would you expect the same result in a
13 fresh-water marsh?
14 A If it was anaerobic and if the sulfates
15 were high.
16 Depends on the sulfates. If the
17 sulfates aren't high, you wouldn't necessarily
18 expect it, even under anaerobic conditions.
19 You have to have two situations at the
20 same time.
21 Q In a fresh-water marsh what would
22 induce the anaerobic conditions?
23 A Depth could do it.
24 Q How deep?
25 A I don't know, Dr. Richardson has done
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1 some work on that, and I wouldn't want to guess,
2 but his research covers some of the depth
3 situations where you get the reduction in
4 oxidation potential.
5 Q Have you reviewed anybody on behalf of
6 or with FFVA, the areas that you will likely
7 offer opinions to at the time of hearing in this
8 case, assuming you're called as a witness?
9 A Not -- No, counsel and I have sort of
10 discussed some areas of possibility, but that
11 would be -- that wouldn't be my choice, that
12 would be up to the counsel.
13 Q So at this time you can't list or
14 recount for me the areas in which you will offer
15 opinions or the nature of those opinions?
16 A Not at this point in time, I can't.
17 MR. HOFFMAN: I will say on the record that
18 they have been covered today, the general areas,
19 everything has been hit.
20 MR. FITZGERALD: It's not clear that he
21 knows that.
22 THE WITNESS: If he said it, then I know it.
23 MR. FITZGERALD: Well, I sort of think we're
24 entitled to a little more than the general areas.
25 We're entitled to know what the precise opinions
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1 to be offered in testimony are going to be.
2 It doesn't seem that -- Although the
3 witness designation indicated final opinions by
4 late November, subject to receiving more
5 materials, I mean, I understand that could
6 happen, that we're not in a position to
7 articulate precisely what your testimony is going
8 to be or what it is you'll testify regarding --
9 If that's not true, please tell me.
10 MR. HOFFMAN: I don't think it's true. I
11 think he did give his views, and they will be
12 asked in a different way, which I might think
13 might be a better way to ask.
14 He might give his opinions in a
15 different way, but I think he's covered
16 everything.
17 MR. FITZGERALD: Then you'll check those few
18 items for me?
19 MR. HOFFMAN: Okay, okay, sure.
20 MR. FITZGERALD: Nothing further at this
21 time.
22 Of course if opinions change as a
23 result of receiving additional material, I can't
24 preclude the possibility of a brief re-visit --
25 MR. HOFFMAN: Right.
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1 MR. FITZGERALD: -- to nail down any final
2 results and whatnot.
3 MR. HOFFMAN: Right.
4 MR. FITZGERALD: Thank you very much.
5 THE REPORTER: Signature?
6 MR. HOFFMAN: Better -- We better read,
7 because of what happened in Botts, so many
8 things, like the Knight thing was some legal
9 term.
10 Better have him read it so, if we do
11 need two pages of corrections, at least we'll
12 know what the thing is.
13 But he'll hurry up and read it.
14 So he'll read.
15 (FURTHER DEPONENT SAITH NOT)
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1
2 CERTIFICATE
3
4 STATE OF FLORIDA:
: SS.
5 COUNTY OF DADE:
6
7
8
I, CLAUDIA REAM-PINEDO, being a
9 Registered Professional Reporter and Notary
Public in and for the State of Florida at Large,
10 do hereby certify that I reported in shorthand
the deposition of CHARLES EDWARD BARBER, JR.;
11 that reading and signing of the deposition were
waived by the deponent; and that the foregoing
12 pages, numbered from 1 through 234 inclusive,
constitute a true and correct transcript of my
13 shorthand notes of the deposition.
I further certify that I am not of
14 counsel, I am not related to nor employed by an
attorney to this suit, nor interested in the
15 outcome thereof.
The foregoing certification does not
16 apply to any reproduction of this transcript by
any means unless under the direct control and/or
17 direction of the certifying shorthand reporter.
IN WITNESS WHEREOF I have hereunto
18 affixed my hand this 23rd day of April, 1993.
19
20
CLAUDIA REAM-PINEDO, CSR, RPR,
21 NOTARY PUBLIC AT LARGE. MY
COMMISSION EXPIRES: 12-22-96
22
23
24
25
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