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 4 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 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 5 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 6 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 7 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 8 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 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 9 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 10 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 11 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 12 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 14 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 15 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 16 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 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 17 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 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 18 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 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 19 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 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 20 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 JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 21 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, JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 22 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 -- JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 23 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 JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 24 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 JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 25 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. JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 26 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 JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 27 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. JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 28 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. JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 29 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. JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 30 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. JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 31 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 JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 32 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 JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 33 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 JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 34 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. JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 35 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? JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 36 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 JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 37 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 JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 38 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 JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 39 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 JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 40 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; JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 41 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? JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 42 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. JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 43 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 JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 44 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 JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 45 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. JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 46 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 JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 47 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 JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 48 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. JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 49 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 JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 50 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 JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 51 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 JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 52 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. JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 53 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 JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 54 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 JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 55 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? JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 56 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 JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 57 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. JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 58 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 JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 59 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, JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 60 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 JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 61 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 JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 62 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 JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 63 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. JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 64 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 JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 65 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 JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 66 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. JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 67 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 JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 68 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 JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 69 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 JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 70 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, JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 71 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. JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 72 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 JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 73 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 JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 74 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. JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 75 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 JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 76 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 JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 77 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 JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 78 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 JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 79 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. JACK BESONER & ASSOCIATES (305) 371-1537 150 WEST FLAGLER, SUITE 2950; MIAMI, FL 33130 80 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'