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