1 1 STATE OF FLORIDA 2 DIVISION OF ADMINISTRATIVE HEARINGS 3 4 Case Nos. 92-3038, 92-3039, 92-3040 5 6 SUGAR CANE GROWERS COOPERATIVE ) OF FLORIDA, a Florida Agricultural ) 7 Cooperative Marketing Association, ) ROTH FARMS, INC., AND ) 8 WEDGWORTGH FARMS, INC., ) ) 9 and ) ) 10 FLORIDA SUGAR CANE LEAGUE, INC., ) UNITED STATES SUGAR CORPORATION; ) 11 and NEW HOPE SOUTH, INC., ) ) 12 and ) ) 13 FLORIDA FRUIT AND VEGETABLE ) ASSOCIATION, LEWIS POPE FARMS, ) 14 W.E. SCHLECHTER & SONS, INC., and ) HUNDLEY FARMS, INC., ) 15 ) Petitioners, ) 16 vs. ) ) 17 SOUTH FLOORIDA WATER MANAGEMENT ) DISTRICT, an Agency of the State ) 18 of Florida. ) Respondent, ) 19 and ) ) 20 MICCOSUKEE TRIBE OF INDIANS OF ) FLORIDA, the UNITED STATES OF ) 21 AMERICA, and FLORIDA DEPARTMENT OF ) ENVIRONMENTAL REGULATION, and the ) 22 FLORIDA WILDLIFE FEDERATION, and ) the FLORIDA AUDUBON SOCIETY, and ) 23 SIERRA CLUB, ) Intervenors. ) 24 25 JACK BESONER AND ASSOCIATES 2 1 2 3 4 A P P E A R A N C E S 5 THOMAS WATTS-FITZGERALD, 6 Assistant U.S. Attorney 155 S. Miami Avenue, 6th Floor 7 Miami, Florida 33130 8 KENNETH F. HOFFMAN, Esquire 9 Oertel, Hoffman, Fernandez & Cole, P.A. 2700 Blair Stone Road 10 Tallahassee, Florida 32301 11 RICHARD. RUSSELL, Equire 12 Peeples, Earl & Blank, P.A. One Biscayne Tower, Suite 3636 13 Two South Biscayne Boulevard Miami, Florida 33131 14 15 16 DEPOSITION OF DANIEL A. BOTTS, taken on behalf of the Intervenors, on the 11th day of 17 December, 1992, pursuant to the Federal Rules of Civil Procedure, in the offices of the the 18 U.S. Attorney, 155 S. Miami Avenue, 6th Floor, Miami, Florida, 33130, before me, Phil 19 Berglan, a Shorthand Reporter and Notary Public in and for the State of Florida. 20 21 22 23 24 25 JACK BESONER AND ASSOCIATES 3 1 DANIEL A. BOTTS, 2 a witness being produced, sworn and examined 3 on behalf of the Intervenors does hereby 4 deposeth and saith as follows: 5 DIRECT EXAMINATION 6 BY MR. WATTS-FITZGERALD: 7 Q. Good morning, Mr. Botts. I am 8 Assistant United States Attorney Tom 9 Fitzgerald. Have you ever been deposed 10 before, sir? 11 A. Yes, sir. 12 Q. In connection with what cases? 13 A. I was in a pepper damage lawsuit 14 from a herbicide drift incident. 15 Q. Any other instances? 16 A. No, sir. 17 Q. You will probably remember from 18 that, then, if at any time during the 19 deposition I ask a question you don't 20 understand, which seems to happen to me more 21 than everybody else put together, just tell me 22 and I will try and rephrase it. 23 Or if you don't understand what it 24 is I am trying to ask, just let me know and I 25 will see if I can put it in better form or JACK BESONER AND ASSOCIATES 4 1 better English. 2 If at any time during the deposition 3 you want to take a break and get a drink of 4 water or a cup of coffee or something, just 5 let me know and we can accomodate your 6 schedule there. 7 Showing you what is marked as 8 Exhibit 1, Notice of Deposition Duces Tecum, 9 have you seen that notice before? 10 A. Yes. 11 Q. Prior to today? 12 A. Yes. 13 Q. Did you have a chance to review, 14 with Counsel, the enclosed portions 15 delineating what documents you should produce 16 in connection with the deposition? 17 A. Yes. 18 Q. Where do you live, Mr. Botts? 19 A. Orlando, Florida. 20 Q. How long have you been a resident in 21 that area? 22 A. Since 1985. 23 Q. Can you give me your educational 24 background starting with high school. 25 A. I attended public schools in Troy, JACK BESONER AND ASSOCIATES 5 1 Alabama, graduated from Charles Henderson High 2 School in 1969, attended Auburn University, 3 received a BS in biological sciences from 4 Auburn in 1973, and a Master of Science in 5 Biology in 1978, from Auburn. 6 Q. Between your Bachelor's Degree in 7 1973, and returning to school for your 8 Master's, what did you do? 9 A. I worked for my father, who is a 10 civil engineer and land surveyor in Troy for a 11 year and a half and then returned to graduate 12 school. 13 Q. After completing graduate school in 14 1978, what was your first employment? 15 A. I moved to Clewiston, Florida, and 16 taught school at Belle Glade Day School for 17 one year. 18 Q. What subjects did you teach? 19 A. Seventh grade life science and 10th 20 grade biology. 21 Q. After a year in that position, what 22 job did you take? 23 A. I went to work for South Bay Growers 24 as their assistant technical director and 25 became technical director there in 1981, and JACK BESONER AND ASSOCIATES 6 1 left the employ of South Bay Growers in 1985, 2 to take the current position that I now have. 3 Q. Was your departure from South Bay 4 Growers amicable? 5 A. Yes. 6 Q. South Bay Growers is a member of the 7 Florida Fruits and Vegetable Association? 8 A. Yes. 9 Q. At the time you were first employed 10 by South Bay, or throughout your time there, 11 who owned South Bay? 12 A. When I went to work there it was 13 owned by Billy Rogers and Mutt Thomas. It was 14 sold to U.S. Sugar Corporation -- I am not 15 sure of the specific date -- I think it was 16 November of either 1980 or 1981. 17 Q. So from approximately 1981 through 18 1985, you were indirectly employed by U.S. 19 Sugar through South Bay? 20 A. Right. 21 Q. And what was the business of South 22 Bay Growers? 23 A. Vegetable production. 24 Q. Did they do primarily farming or was 25 their work processing? JACK BESONER AND ASSOCIATES 7 1 A. At the time I was employed there it 2 was mostly agricultural production of several 3 different commodities, and they also served as 4 a handler for other growers and sales agent 5 for other growers. 6 Q. How large an operation was it at the 7 time that you left? 8 A. It was not a lot different than it 9 is now, as far as the actual operational 10 parameters of what they were growing, and it 11 was -- absolute numbers I can't give you off 12 the top of my head as far as acreage or people 13 hired or that kind of information. 14 Q. Where is the acreage located that 15 was being farmed by South Bay at the time? 16 A. At the time I left -- it's hard -- 17 they were -- they had a lettuce operation 18 south of South Bay. 19 They had a lettuce operation in the 20 northeast section of the EAA. They had a 21 lettuce operation on the western boundary of 22 Palm Beach County adjacent to Hendry County. 23 They had a celery operation that was 24 essentially south of the city of South Bay. 25 Q. Was that land held directly by South JACK BESONER AND ASSOCIATES 8 1 Bay Growers? 2 A. No. 3 MR. HOFFMAN: I will interpose an 4 objection. There is no predicate that the 5 witness knows the legal -- I think it calls 6 for a legal conclusion, actually, and I will 7 object to you asking him to give a legal 8 conclusion and no predicate that he was 9 involved. 10 His job did not sound like it was 11 involved with a land ownership type of 12 question, so I will object for that reason. 13 Q. (BY MR. WATTS-FITZGERALD) You can 14 answer the question if you know. If I ask a 15 question and you don't know the answer, that 16 is a perfectly acceptable answer -- well, it 17 may not be perfectly acceptable, but it's a 18 good answer. 19 Do you know if they owned the land 20 when they were conducting operations on it? 21 A. I am not sure what arrangements were 22 done. 23 Q. Do you know if that land was 24 exclusively devoted to the lettuce and celery 25 operations you were describing or was it also JACK BESONER AND ASSOCIATES 9 1 used for other crops? 2 A. A portion of it was used for other 3 crops. There was sweet corn grown in rotation 4 by other growers on the property. 5 Q. Did they grow sugar cane in rotation 6 on any of that land? 7 A. When I was there most of the land 8 that was in vegetable production was rotated 9 from sugar cane to vegetable production, and 10 it was my experience while we were there, we 11 did not rotate directly, in the same season, 12 vegetables or sugar cane because of the 13 longevity of the sugar cane crop. 14 Q. Did South Bay Growers, during the 15 period of time you were with them, handle 16 sugar cane at all? 17 A. When I was first employed there, 18 because of the ownership, each of the 19 individual owners had sugar cane acreage and 20 at that time they did, and I am not absolutely 21 positive how the holdings of South Bay were 22 put into the U.S. Sugar operation at the time 23 the sale took place. 24 Q. What was the precise nature of your 25 duties as assistant technical director when JACK BESONER AND ASSOCIATES 10 1 you first went to South Bay? 2 A. Crop production related research, 3 compliance with various environmental 4 regulations, specifically pertaining to 5 pesticides. 6 I was in charge of their soils lab, 7 made the fertilizer recommendations based on 8 information provided from consultants. 9 Q. How did your duties change when you 10 took over as technical director? 11 A. Not a lot. It was just moving up -- 12 the person who had the job prior to me had a 13 health problem and he essentially retired and 14 became a consultant and it was just a 15 progression. The office handled the same sort 16 of duties. 17 Q. Who was that? 18 A. Doctor Tom Carpenter. 19 Q. In developing your recommendations 20 for application of fertilizers or pesticides 21 or any of the technical recommendations you 22 made to South Bay Growers, did you utilize 23 outside consultants? 24 A. The primary consultant utilized was 25 Doctor Howard Burdine (phonetic) who had JACK BESONER AND ASSOCIATES 11 1 retired from the IFAS Extension Research 2 Center in Belle Glade. 3 Q. Did your operation at South Bay use 4 IFAS directly for any purposes? 5 A. No moreso than any other farm in 6 operation. It was an advice and counsel type 7 situation. 8 Q. Did, at that time, South Bay Growers 9 conduct soil testing to determine what 10 fertilizers it would apply? 11 A. Yes. 12 Q. Did you do that in your own lab? 13 A. Yes. 14 Q. Did you use any outside lab or did 15 you employ any outside labs to conduct any of 16 those tests for you? 17 A. No. 18 Q. After you left South Bay Growers in 19 1985, what was your position with the Florida 20 Fruit and Vegetable Association? 21 A. Florida Fruit and Vegetable 22 Association created the division I headed up 23 in 1985, which is to deal with environmental 24 pest management and related issues. 25 A lot of the things that I was doing JACK BESONER AND ASSOCIATES 12 1 at South Bay translated to this job with 2 Florida Fruit and Vegetable Association as far 3 as pesticide-related work and labeling efforts 4 for pesticides, representations of the 5 vegetable industry's positions on various 6 issues of an environmental nature. 7 Q. The directory for 1991/1992 that you 8 provided me of the Florida Fruit and Vegetable 9 Association lists you as a secretary/treasurer 10 on the board of directors of a subsidiary 11 called, "Third Party Registrations, 12 Incorporated"? 13 A. Yes. 14 Q. What is that? 15 A. It's a nonprofit subsidiary which 16 was set up to register pesticides in the State 17 of Florida on behalf of the growers who are 18 members of the association that would not be 19 registered because of either toxicity or other 20 like concerns by the primary registrant. 21 Q. So the expense of securing, what 22 they call in business, a label would be taken 23 on by third-party registrations? 24 A. Well, to give you a complete answer 25 that I don't have to back up and walk you JACK BESONER AND ASSOCIATES 13 1 through some things that are going to get 2 technical and complex, but if you have the 3 time, I have got the time. 4 Q. I have the time. 5 A. One of the major impediments to 6 obtaining pesticide registration for 7 expensive, high value, labor intensive crops 8 that are grown on small acreages, one of the 9 main deterrents is the potential liability 10 associated for the chemical company who 11 registers that product on that crop. 12 All of the commodities that we grow 13 in Florida are minor crops in the eyes of the 14 registrants and various places. One of the 15 major things that has been thrown up to us as 16 being a problem for a chemical company to 17 pursue a registration is that liability. 18 Several of the larger registrants in 19 the country approached the industry to develop 20 a mechanism whereby the growers who wanted to 21 use the product could provide an 22 indemnification to the chemical company for 23 that specific liability, crop damage, 24 phytotoxicity, nonperformance, liability. 25 We took about two and a half years JACK BESONER AND ASSOCIATES 14 1 of researching the various legal aspects of 2 how to set the process up, put it in place, 3 make it work. 4 We incorporated in 1987 and, I 5 think, according to the lawyer who did the 6 incorporation papers, we are the only 7 nonprofit, stock ownership corporation in the 8 state that is intentionally nonprofit. 9 But it was designed to provide a 10 registration administration mechanism for 11 labels that would allow our growers to use a 12 product that the chemical company had concerns 13 about from a potential safety standpoint. 14 The margin of safety on most 15 compounds are either three-X, four-X, five-X, 16 100-X. And some of the compounds we have 17 registered, if you take the use rate, if you 18 go 50 percent over that, you have a very real 19 potential for liability. So it's those types 20 of compounds that we have worked on. 21 Q. So like this is the way DuPont 22 should have registered Benleaf (phonetic) in 23 Florida? 24 A. In hindsight, probably so. 25 Q. How many labels have you registered JACK BESONER AND ASSOCIATES 15 1 -- was it 1986 that you incorporated? 2 A. In 1987, we incorporated. We have 3 four or five individual use compound 4 combination labels. We only have two active 5 current labels in place right now. 6 We are in the middle of submitting a 7 complete package for another registration 8 which would go in in the next six to eight 9 weeks. 10 Q. Who actually issues the 11 registrations? 12 A. It's based through the 24-C 13 mechanism. It would be a state registration 14 for a federally registered product, so it's -- 15 EPA actually registers it, but it's by not 16 denying a state registration that it gets 17 registered. 18 MR. HOFFMAN: Excuse me for one 19 second now. I don't have any fears so far 20 from your questions, but since what aside 21 corporations do other than FFVA is not an 22 issue in the case. 23 I just want to ask the witness to 24 alert us if a question is asked that deals 25 with something he might think is confidential JACK BESONER AND ASSOCIATES 16 1 or proprietary or something so that I can 2 object and let Tom know. 3 MR. WATTS-FITZGERALD: I don't think 4 I will be going much further on that anyway. 5 Q. (BY MR. WATTS-FITZGERALD) How much 6 of your time, Mr. Botts, is devoted to that 7 aspect of your employment with the 8 association? 9 A. Approximately 25 percent. 10 Q. Do you utilize outside consultants 11 to assist in the package preparation or the 12 evaluation of the substances that you might 13 consider registering? 14 A. The actual field trial work and 15 analytical work, yes, but not the package 16 preparation for submission. 17 Q. Who did you use for the outside 18 field trials? 19 A. There is a consultant that we use 20 who is on the board of directors of TPR, 21 Robert Johnson from Eustis, and we have also 22 utilized Doctor Orsinegos' (phonetic) 23 services, and from the analytical 24 standpoint -- 25 Q. That's Joseph Orsinegos, who is the JACK BESONER AND ASSOCIATES 17 1 VP of the organization? 2 A. Yes. 3 Q. Did you have any role in the forming 4 or administering of the special temporary 5 FFVA committees? 6 A. Yes. 7 Q. What committee? 8 A. The one that is specifically 9 directing the activities surrounding the EAA 10 effort. 11 Q. CARE? 12 A. Committee for Agricultural Resources 13 in the Everglades. 14 Q. Referred to as CARE, C-A-R-E? 15 A. Right. 16 Q. When was that committee formed? 17 A. April of, I think, 1991. I think -- 18 I am not sure. It's in -- I would have to 19 look back on the documents. I think you have 20 those. 21 Q. Whose notion was the formation of 22 CARE? 23 A. The growers in the EAA, the 24 vegetable growers in the EAA. 25 Q. In order to form a special -- is JACK BESONER AND ASSOCIATES 18 1 that a special temporary committee within 2 FFVA? 3 A. Right. 4 Q. Does membership on CARE require 5 prior membership in FFVA? 6 A. No. 7 Q. Are there any members of CARE who 8 are not members of FFVA? 9 A. No, sir. 10 Q. Was CARE separately incorporated or 11 is it wholly a subsidiary of the association? 12 MR. HOFFMAN: To the extent that 13 that question seems to have a legal 14 connotation as to what legal subsidiary of a 15 trade association is, I would object. You can 16 answer, but I think -- 17 MR. WATTS-FITZGERALD: Well, I can 18 ask it a different way and take the legal 19 slant off it. 20 Obviously it's a board of directors 21 of an independent corporation, a wholly-owned 22 subsidiary and it appears he would probably 23 know. 24 Q. (BY MR. WATTS-FITZGERALD) What is 25 the relationship between the association and JACK BESONER AND ASSOCIATES 19 1 this CARE organization? 2 A. The CARE committee was formed 3 specifically at the request of the vegetable 4 growers in the EAA for an ad hoc committee, 5 which is what CARE was set up as, and it has 6 to be approved by the board of directors of 7 Florida Fruit and Vegetable Association. 8 Q. Was the formation of CARE 9 formally approved in a vote of the board of 10 directors of the association? 11 A. Yes, sir. 12 Q. When did that occur? 13 A. April 10th, 1991, I believe, either 14 1991 or 1992. I would have to go back and 15 check. 16 Q. How is the CARE committee and its 17 activities financed? 18 A. Through a direct assessment that is 19 paid based upon the packages each member of 20 CARE produces. 21 Q. Is that administered by CARE itself? 22 A. Yes. 23 Q. Okay. 24 A. Well, it's administered by me as the 25 coordinator for CARE activities. Does that JACK BESONER AND ASSOCIATES 20 1 make sense to you? 2 Q. Yes -- well, whether it makes sense 3 or not doesn't matter. I understand it. 4 How is it that you happen to be 5 tagged with the task of being the liason, or 6 whatever your formal title is, with respect to 7 CARE, staff contact, whatever? 8 A. Because of the area of 9 responsibility I have within the association 10 that deals with water related issues and it 11 just made logical sense to administer the 12 operations of CARE through my division. 13 Q. Is that the Environmental Pest 14 Management Functional Committee that you were 15 referring to as your position in the 16 association itself? 17 A. That is the functional committee 18 that actually determines the operating 19 parameters around which my division operates. 20 We are driven by and included in the directory 21 as a whole series of policy statements and 22 directions: 23 And what that committee has 24 recommended to the board would be the official 25 policy of FFVA which is adopted by the board JACK BESONER AND ASSOCIATES 21 1 and that is the parameters around which we 2 operate in the various areas of activities 3 that the divisions of FFVA functions in. 4 Q. One of the policy statements in the 5 directory to which you and I have been 6 referring under research and education 7 indicates the encouragement, sponsorship and 8 participation in research activities related 9 to obviously the areas of members interests in 10 the agricultural field for your Florida 11 growers. 12 What research, if any, has been 13 conducted under the auspices of CARE? 14 A. CARE has provided funding to the 15 IFAS project on BNP and water management that 16 is being, I guess, the IFAS contact person is 17 Forest Izuno. 18 The primary funding for that is 19 coming through a different organization, but 20 CARE did provide $30,000 of funding to the 21 start-up of that initial activity. 22 Because we don't have a specific 23 function mechanism set up to obtain funds for 24 research, these are more or less on the basis 25 of if there is a grower need identified in a JACK BESONER AND ASSOCIATES 22 1 specific area, if the growers are willing to 2 fund it, we will act as a support mechanism to 3 collect funds and get the research done. 4 But the only other thing that we 5 have done, even similar to that, was to do the 6 basic research behind obtaining a general 7 permit for wastewater disposal for tomato 8 packing facilities in the state. 9 Q. The $30,000 funding for the IFAS 10 study that Forest Izuno is principal 11 investigator on, was that $30,000 derived from 12 the direct assessment on the packages produced 13 of the CARE members? 14 A. Of the CARE members. 15 Q. Not the organization? 16 A. Not the organization as a whole, and 17 that is one thing that the CARE committee -- 18 that committee has its own organizational 19 parameters. 20 It has a steering committee that 21 directs the activities of the committee, and 22 everything that that committee does is done 23 based on their direct recommendation. 24 There is no official tie to FFVA in 25 those decisions other than the fact that the JACK BESONER AND ASSOCIATES 23 1 executive committee of FFVA reviews and 2 approves the minutes of the actions of the 3 CARE committee after actions have been taken. 4 Q. How do they go about approving the 5 minutes if they are not participating in the 6 activities of the CARE committee? 7 A. They approve them once the CARE 8 committee members have reviewed and approved 9 them. They adopt them as a record of what 10 that ad hoc committee has done. It's the same 11 way the functional committees operate. 12 Q. The balance of the funding for the 13 IFAS study, what was the source? 14 A. Environmental Protection District. 15 Q. The Everglades Environmental 16 Protection District? 17 A. Yes. 18 Q. How much did they contribute? 19 A. I don't have any idea. 20 Q. Do you know who would? 21 A. The members of the board and the 22 people who are participating in specific 23 operations which are land owners in the area. 24 They have a formal report that comes out that 25 shows a budget and funding, but I don't JACK BESONER AND ASSOCIATES 24 1 receive copies of that. 2 Q. Is there a specific person or group 3 of persons on the CARE committee that are 4 responsible for maintaining liason with IFAS 5 for that work? 6 A. Our consultant that has been 7 advising us on technical activity, Ed Barber, 8 is the main primary contact, but we also have 9 the chairman of our steering committee is on 10 the EPD board, who is Johnny Schlechter. 11 Q. Is Johnny Schlechter named as a 12 petitioner in this case? 13 A. Yes. 14 Q. What is the formal title of the 15 division that you head at the FFVA? 16 A. Environmental and Pest Management 17 Division. 18 Q. So where it is says, "Functional 19 Committees," that also is synonymous with the 20 division? 21 A. In my case, yes. 22 Q. Do you or your division have 23 responsibility over water issues, generally, 24 for the FFVA? 25 A. For those issues of a statewide JACK BESONER AND ASSOCIATES 25 1 significance, that's our primary direction, 2 yes. 3 Q. Did your committee, or your division 4 rather, have responsibility within FFVA for 5 monitoring the development of the chapter 6 40E-63 of the Florida Administrative Code, the 7 BMP rule for the EAA? 8 A. We did that at the request of CARE, 9 but it was done through our counsel and our 10 technical consultant. 11 Q. Who was your counsel for that 12 purpose? 13 A. Terry Cole. 14 Q. Of the illustrious firm of? 15 A. Oertel, Hoffman, Fernandez and Cole. 16 Q. How long has Mr. Cole represented 17 the FFVA in these types of matters? 18 A. He was retained specifically for the 19 EAA activities, and that's been since April of 20 1991, I think. 21 Q. Did the FFVA participate in any way 22 in the lawsuits filed by the United States 23 against the Department of Environmental 24 Regulation and South Florida Water Management 25 District? JACK BESONER AND ASSOCIATES 26 1 A. We were originally named as 2 requesting party status in that group or in 3 that lawsuit. 4 Q. Who represented the FFVA in that 5 lawsuit? 6 A. Peeples, Earl & Blank. 7 Q. During what time period did Peeples, 8 Earl & Blank represent you? 9 A. Until the CARE committee retained 10 their own counsel and made a decision to 11 withwraw. 12 Q. Which was about April of 1991? 13 A. Yes, sir. 14 Q. How early did that representation 15 start? 16 A. I am not absolutely sure, because at 17 that time I was not directly involved in that 18 decision, in that process. 19 Q. Was the board of directors of the 20 FFVA briefed on the settlement agreement that 21 was reached between the two state agencies and 22 the United States in that suit? 23 A. I am not sure. 24 Q. How about CARE? 25 A. CARE was provided copies and some of JACK BESONER AND ASSOCIATES 27 1 the members of CARE were provided copies of 2 the settlement agreement. I don't know that 3 there was ever an effort to go through it 4 point by point by point. 5 Q. When did CARE retain Mr. Barber as a 6 consultant to represent them with regard to 7 the BMP rule? 8 A. The closest I can give you is 9 probably the summer of 1991. I am not sure of 10 the absolute date on that. I would have to go 11 back and try to dig that back out from when we 12 started paying bills. 13 Q. Was Mr. Barber actually employed by 14 CARE or by FFVA? 15 A. I don't know that there is a 16 distinction there. I know FFVA pays the bills 17 that Mr. Barber sends in from funds that are 18 escrowed from CARE, who actually voted as a 19 committee to retain his services in this 20 matter. 21 Q. That was going to be my next 22 question anyway, so you have anticipated it. 23 Is Mr. Cole's representing or was his 24 representation handled the same way? 25 A. Yes. JACK BESONER AND ASSOCIATES 28 1 Q. Who is currently the chairman or 2 president, whatever the title is, or the 3 director of CARE? 4 A. Johnny Schlechter. 5 Q. How does the steering committee of 6 CARE function as opposed to the entire CARE 7 committee? What is the purpose of the 8 steering committee? 9 A. The way the committee was structured 10 at the time, rather than involve all of the 11 individual growers, the decision was made that 12 each handler who collects and pays the 13 assessments for the individual named growers 14 would have a representative on the steering 15 committee that would act on behalf of the 16 members of the committee with their approval. 17 And the committee functions pretty 18 much at the direction or call of the chairman 19 as far as calling meetings and deciding when 20 issues need to be discussed through the full 21 membership or to the committee, just the 22 steering committee, or exactly how the 23 committee is to function. 24 Q. In addition to being vegetable 25 farmers -- well, are all the members of CARE JACK BESONER AND ASSOCIATES 29 1 vegetable farmers in the EAA? 2 A. Yes, sir. 3 Q. Are any of them, to your knowledge, 4 also producers of other agricultural 5 commodities in the EAA? 6 A. I am sure they are. 7 Q. What other commodities? 8 A. Sugar cane, sod, rice. 9 Q. Is that it? 10 A. That's about all there is out 11 there. 12 Q. Citrus? 13 A. Not in the EAA. 14 Q. On the west side, isn't there citrus 15 over there -- aren't they starting to produce 16 citrus over there on the west side of the EAA? 17 A. Not in the EAA proper as it's 18 defined. As I understand it it starts at L-1 19 and moves this way. 20 Q. So it's east of L-1? 21 A. Yes. 22 (An off-the record discussion was 23 here had). 24 Q. (BY MR. WATTS-FITZGERALD) Within 25 your knowledge, at any time, did the Florida JACK BESONER AND ASSOCIATES 30 1 Fruit and Vegetable Association as 2 distinguished from CARE because you deal with 3 CARE separately, conduct any analysis of the 4 proposed SWIM Plan for the Everglades that was 5 ultimately developed by the South Florida 6 Water Management District? 7 A. No. 8 Q. Was responsibility for review of the 9 SWIM Plan, the Everglades SWIM Plan, vested 10 solely in the CARE committee? 11 A. Yes. 12 Q. In the minutes of the September 13 20th, 1991 meeting of the CARE committee, 14 there is discussion of something referred to 15 as a bubble concept and a need for the various 16 basins to work together. 17 To help everybody out here, I have 18 got these -- I have sort of reordered them 19 into chronological order to the extent I have 20 any questions on them and I will go down 21 through the documentation chronologically. 22 The September 20th minutes, a 23 two-page document, the final paragraph on the 24 first page -- this is what it looks like 25 (holding up the document). JACK BESONER AND ASSOCIATES 31 1 A. I just haven't gotten to it yet. 2 Q. That's it right there. The 3 financial paragraph on the first page talks 4 about the bubble concept, the basis of 25 5 percent reduction recommendation by IFAS. 6 Were you present at that meeting? 7 A. Yes. 8 Q. And Mr. Barber was there, of Ed 9 Barber and Associates? 10 A. Right. 11 Q. And Mr. Cole and a number of the 12 members? 13 A. Right. 14 Q. At that time there was a different 15 chairman? 16 A. Yes. 17 Q. Mr. Teets? 18 A. Yes. 19 Q. What was the bubble concept that was 20 being discussed? 21 A. The vegetable growers, since the 22 very beginning of the process of attempting to 23 deal with phosphorus loading in the EAA, was 24 concerned that, unless you looked at it as an 25 EAA wide problem: JACK BESONER AND ASSOCIATES 32 1 That it would not be able to meet 2 the 25 percent reduction that was being 3 projected by IFAS as being the feasible level 4 of phosphorus reduction under BMP. 5 And it was an attempt at that point 6 to look at it as a basin-wide area and they 7 were looking at the master permit versus the 8 individual permit. 9 Q. Prior to the South Florida Water 10 Management District commencing its workshops 11 and development on 40E-63, had the Florida 12 Fruit and Vegetable Association examined the 13 issue of phosphorus in runoff from its farming 14 operations? 15 A. No. 16 Q. And, of course, the CARE committee 17 didn't exist prior to that? 18 A. No. 19 Q. At the time that this issue was 20 addressed at FFVA and at CARE, was the concern 21 for the bubble concept based on the 22 recognition that the vegetable operations had 23 a higher phosphorus application rate than some 24 other agricultural enterprises in the EAA? 25 A. That was the primary concern driving JACK BESONER AND ASSOCIATES 33 1 that thought process, yes. 2 Q. Up to that point the initiation of 3 the BMP workshop process and development of 4 the rule, had any testing been done of runoff 5 of the vegetable growers, to your knowledge, 6 to determine the levels of phosphorus that 7 were, in fact, present in the runoff from 8 their operations? 9 A. Other than the publicly financed 10 work, the original IFAS work and some of the 11 data that the water management district was 12 using, I am not aware of any data that was 13 produced by the individual agricultural 14 operations. 15 Q. Mr. Hundley, according to the 16 minutes, suggested that a small group from 17 CARE should attempt to bring principals of the 18 sugar industry together, presumably with the 19 vegetable people from CARE, to develop a 20 common strategy for a master permit. 21 Was the notion being discussed 22 there a single master permit for the entire 23 EAA? Was that the essence of the bubble 24 concept? 25 A. Because of the fact that the JACK BESONER AND ASSOCIATES 34 1 EAA/EPD was already there, it was the 2 contention of the vegetable growers from day 3 one that the simplest solution to a permitting 4 process would have been for the EAA/EPD to get 5 a master permit for the whole EAA, and that's 6 where that's coming from. 7 Q. The minutes further indicate that 8 Frank Teets, Gene Dodgen and John Hundley 9 would initiate the contact to set up the 10 meeting. Did they, in fact, do that, to your 11 knowledge? 12 A. For this specific instance, I am not 13 sure. I don't know. 14 Q. Now, at that same meeting, 15 Mr. Izuno, on the second page, second 16 paragraph, presented a proposal to fund a 17 project titled, "Implementation of 18 Verification of the BMPs for Reducing P 19 Loading in the EAA." 20 Is that the project that ultimately 21 the committee contributed the $30,000 22 towards? 23 A. It was his initial project proposal 24 and I am not sure how that proposal was 25 changed from the time he first presented it JACK BESONER AND ASSOCIATES 35 1 here until it was finally approved and adopted 2 by the EEA/EPD. 3 To my knowledge, I think they are 4 very similar. 5 Q. So that was sort of the genesis of 6 it, though, that may have evolved from it. 7 A. Yes. 8 Q. That's a five year project? 9 A. Yes, our initial funding effort was 10 to get the project started to allow the 11 EEA/EPD to come in with their formal funding 12 cycle. 13 Forest had to have some funds up 14 front and that's what CARE funded, was the 15 initial influx of capital to get the project 16 moving. 17 Q. Now, you also introduced a 18 representative of CH2M Hill at the meeting, a 19 consulting firm, with regard to baseline water 20 quality monitoring? 21 A. Right. 22 Q. What was the purpose of bringing 23 Mr. Gong to the meeting? 24 A. The vegetable growers had initially 25 investigated the possibility of starting a JACK BESONER AND ASSOCIATES 36 1 project to do their own baseline monitoring 2 because of the lack of data that we had to 3 support the phosphorus loading information 4 from the actual vegetable farms themselves, 5 and when they decided to go with the IFAS 6 proposal, that effort was dropped. 7 Q. When, if at all, did the committee, 8 in fact, implement baseline monitoring for the 9 vegetable farms in the EAA? 10 A. The baseline monitoring was, as I 11 understand it, was to be done as part of the 12 IFAS project, which is currently being 13 initiated. I am not sure. 14 Q. So you don't know if it's in place 15 yet or not? 16 A. Well, the individual permits that 17 were required under the BMP rule had a 18 requirement for monitoring as well, and I know 19 that they are in the final stages of getting 20 those approved so the individual farms will 21 have a monitoring output there. 22 I don't know if anybody has 23 initiated anything yet, because the growers 24 decided to do the individual permits 25 themselves, rather than the committee JACK BESONER AND ASSOCIATES 37 1 coordinating the effort for them. 2 MR. WATTS-FITZGERALD: I will go 3 ahead and ask that that be marked as Exhibit 2 4 since we have used it so extensively. 5 (Exhibit 2 was here marked for 6 identification purposes by the court 7 reporter). 8 Q. (BY MR. WATTS-FITZGERALD) Mr. Botts, 9 within the materials you have provided is an 10 excerpt from the National Wetlands Newsletter, 11 Volume 13, No. 6, November/December, 1991: 12 And therein there is an article 13 titled, "We Need a Balancing Act," by Ed 14 Barber. Did he write that on behalf of CARE? 15 A. No, sir. 16 Q. Did he submit or otherwise clear the 17 contents of that article with the CARE 18 committee prior to having it published? 19 A. No, sir. 20 Q. Did he, to your knowledge, submit it 21 or have it cleared by the Florida Fruit and 22 Vegetable Association prior to having it 23 published? 24 A. No, sir. 25 Q. Have you read the article? JACK BESONER AND ASSOCIATES 38 1 A. Not recently. 2 MR. WATTS-FITZGERALD: Let me make 3 that Exhibit 3, please. 4 (Exhibit No. 3 was here marked for 5 identification purposes by the court 6 reporter). 7 Q. (BY MR. WATTS-FITZGERALD) Next will 8 be the letter to Tilford Creel dated November 9 19th, 1991, from the Florida Fruit and 10 Vegetable Association. 11 Inviting your attention to a letter 12 on Florida Fruit and Vegetable Association 13 letterhead dated November 19th, 1991, 14 to Mr. Tilford Creel, Executive Director of 15 the South Florida Water Management District. 16 Had you seen this letter prior to it 17 being sent to Mr. Creel? 18 A. I saw a draft of it, yes, sir. 19 Q. Do you know who drafted the letter? 20 A. I believe Ed Barber did. 21 Q. Who reviewed the letter prior to 22 actually it being sent? 23 A. The CARE steering committee, our 24 counsel, and I assume that our executive vice 25 president at the time, George Zorn, also read JACK BESONER AND ASSOCIATES 39 1 it. I am trying to remember. 2 Q. Mr. Zorn was the executive vice 3 president of -- 4 A. Florida Fruit and Vegetable 5 Association. He still is until January 1st. 6 Q. The CARE committee, as well as the 7 steering committee, reviewed and approved the 8 submission of the letter? 9 A. I am not sure the full committee saw 10 it before it was sent. It was supplied to the 11 full committee as part of the minutes of the 12 meeting, and I am not sure exactly when that 13 took place. 14 Q. And this was intended to be comments 15 by CARE on September 24th, 1991, draft of the 16 SWIM Plan? 17 A. Right. 18 Q. Paragraph 1 of that notes that the 19 support document clearly demostrates the 20 concern that the district has for hydroperiod, 21 but that there are no significant action items 22 to address hydroperiod adjustments to the 23 system. 24 Did the CARE steering committee 25 discuss that particular point before including JACK BESONER AND ASSOCIATES 40 1 it in their comments on the SWIM Plan? 2 A. Not as a specific point. 3 Q. Did anybody, to your recollection, 4 question Mr. Barber about that? 5 A. I don't know. 6 Q. The meetings of CARE and the 7 steering committee, those were not 8 stenographically recorded in any way or a 9 verbatim record kept? 10 A. No, sir. 11 Q. Going to Page 2 of the same 12 document, Paragraph 7 says, "The Plan 13 discussion of the history of the development 14 of the EAA does not review private investment 15 in economic activity. 16 "This important component would 17 include some statements recognizing farmers' 18 impact on the economic activity in the 19 region." 20 Do you recollect why a discussion of 21 economic impact and economic activity by 22 private interests in the EAA was felt to be 23 worthy of inclusion in the SWIM Plan? 24 A. I remember conversations surrounding 25 this particular area, but I don't remember the JACK BESONER AND ASSOCIATES 41 1 exact discussion, no, sir. 2 Q. Do you recall whether that provision 3 was in Mr. Barber's original draft? 4 A. No, I don't. 5 Q. Paragraph 10 on the same page notes 6 that within the EAA subsidence may increased 7 the risk of flooding. Do you recall whether 8 that was in the original version? 9 A. Of the draft? 10 Q. Yes. 11 A. No, sir, I am not sure. 12 Q. Was there any discussion over the 13 cause of subsidence within the EAA? 14 A. No, sir. 15 Q. Has Florida Fruit and Vegetable 16 Association ever addressed that issue with its 17 members? 18 A. Not as a specific issue that 19 warranted anything other than the general 20 academic concerns that had been expressed by 21 IFAS and the whole EAA since there has been 22 farming. 23 Q. Has someone involved in the EAA 24 since -- going back now to roughly 1978, 1979, 25 is it your opinion or your understanding that, JACK BESONER AND ASSOCIATES 42 1 generally, knowledge of subsidence as an issue 2 in the EAA is widely known or widely 3 recognized? 4 A. I would assume so, yes, sir. 5 Q. Has CARE, in its meetings, ever 6 addressed the subsidence issue in its 7 implications for phosphorus loading in its 8 runoff? 9 A. The subject has been brought up. I 10 don't know that we have ever discussed it in 11 specific detail, no. 12 Q. In the BMP as proposed by IFAS, Dale 13 Voucher and Mr. Izuno, one of the proposals is 14 maintaining the water table levels higher 15 within the EAA in part to reduce subsidence 16 and in part to reduce the remineralization of 17 the soils which can cause phosphorus loading 18 downstream. 19 During Mr. Izuno's presentation to 20 the CARE committee, did he ever discuss that 21 as a BMP for vegetables? 22 A. I don't remember him specifically 23 addressing it. There is a context for this 24 being in here, which was a January 19th flood 25 event which caused several of the members of JACK BESONER AND ASSOCIATES 43 1 CARE to lose substantial amounts of their crop 2 because of a lack of ability to move water off 3 of their land. 4 According to the district, one of 5 the reasons that the water did not move as 6 well as it had in the past was because the 7 control levels in the interim operating permit 8 were such that it did not take into account 9 the reduction in elevation due to subsidence 10 since they were adopted in -- I guess, in 11 1979. I am not sure. 12 But that's why that's in there. The 13 growers were very sensitive to the flooding 14 issue which, at least from the district's 15 standpoint, had been attributed partially to 16 subsidence. 17 Q. The CARE committee members who are, 18 at least the vegetable portion of their 19 operations, are those in 298 district? 20 A. Some are, and I am not sure which 21 ones are and which ones aren't. 22 Q. The members that lost or had 23 substantial crop losses due to the January, 24 1991, rain event, were they in the 298 25 district? JACK BESONER AND ASSOCIATES 44 1 A. No. 2 Q. So if they are not in 298 district, 3 one would suspect, then, that they had their 4 own pumping to remove water from their farm 5 areas; is that correct? 6 A. Right. 7 Q. Paragraph 9 on the same page of the 8 same document discusses evaluation of 9 treatment options or alternatives to 10 stormwater treatment areas. Did, at any time, 11 the CARE committee discuss, prior to 12 presentation by U.S. Sugar at a later meeting, 13 alternative treatment mechanisms to remove 14 phosphorus from stormwater runoff from the 15 EAA? 16 A. Not that I am aware of. 17 MR. WATTS-FITZGERALD: Mark that as 18 Exhibit 4. 19 (Exhibit No. 4 was here marked for 20 identification purposes by the court 21 reporter). 22 Q. (BY MR. WATTS-FITZGERALD) As part 23 of your duties with the Florida Fruit and 24 Vegetable Association, did you attend any of 25 the workshops on the BMP rule? JACK BESONER AND ASSOCIATES 45 1 A. Yes, sir. 2 Q. I won't ask you the specific dates 3 because there were so many, but did you attend 4 all the meetings or substantially all the 5 meetings? 6 A. Probably 60 percent of them. 7 Q. Who else attended those meetings on 8 behalf of the Florida Fruit and Vegetable 9 Association? 10 A. Terry Cole and Ed Barber, on behalf 11 of CARE, and several of the members also had 12 representatives at most, if not all, of the 13 meetings. 14 Q. Now, Mr. Barber and Mr. Cole were 15 there under the auspices of CARE, correct? 16 A. Right. 17 Q. Were you there because of your CARE 18 liason job or separately as a representative 19 of the vegetable association? 20 A. As a CARE liason person. 21 Q. Which members do you recall having 22 personally attended those meetings? 23 A. Of CARE? 24 Q. Yes. 25 A. South Bay Growers, A. Duda JACK BESONER AND ASSOCIATES 46 1 (phonetic) & Sons, W.E. Schlechter & Sons, 2 Pro-Farms, R.C. Hutton, and there could have 3 been others, but those were the ones that 4 stick in my mind. 5 Q. Who represented South Bay Growers at 6 the meetings? 7 A. It varied. Charles Wilson, Mielo 8 Hoot, (phonetic) Julio Sanchez, Don Tanner. 9 Q. Do you know Ms. Wein? 10 A. Yes. 11 Q. Did she attend any of the meetings? 12 A. Not that I am aware of on the 13 workshop for the BMP rule. 14 Q. You saw her later at board meetings 15 on the SWIM Plan? 16 A. She attended later board meetings at 17 the SWIM Plan. I don't think I was in 18 attendance at any of those board meetings 19 where she made presentations. 20 Q. During the development of the BMP 21 rule, comments and suggestions were made by 22 Mr. Cole and Mr. Barber regarding aspects of 23 the regulatory program as it was proposed and 24 ultimately adopted. 25 To your knowledge, were they JACK BESONER AND ASSOCIATES 47 1 representing any other interests other than 2 CARE at that time? 3 A. I know Ed has other clients in the 4 EAA. I don't know that Terry does. Terry was 5 there specifically at our direction as CARE. 6 And Ed was at most of them, specifically, at 7 our direction. 8 Q. Are you familiar with the early 9 baseline option that was adopted in the 40E-63 10 rule? 11 A. I know they adopted one. 12 Q. Was that topic discussed by the CARE 13 committee? 14 A. It was discussed, I know, by the 15 technical committee of CARE, and it was 16 discussed at several of the general membership 17 meetings and as the evolution of how the 18 baseline establishment and the calculations 19 were being made to determine what the load 20 component would be. 21 I don't know that as it was finally 22 adopted it was one of the options that I know 23 the vegetable growers felt like they needed to 24 have in the rule as it was finally adopted. 25 Q. Since you have been with the Florida JACK BESONER AND ASSOCIATES 48 1 Fruit and Vegetable Association, has the 2 membership in the association from the EAA 3 increased or declined? 4 A. It has remained constant. 5 Q. Is that in terms of numbers of 6 growers or acreage, what constant are you 7 using, what parameter? 8 A. Percentage of the people that are 9 still involved in agricultural production in 10 the Glades that are members of Florida Fruit 11 and Vegetable Association have not changed. 12 There is a transition of people 13 going in and out of business and, from that, 14 membership has changed, but the relative 15 percentage has remained constant. 16 Q. Did you have a sense of whether, as 17 an industry, the vegetable industry in the EAA 18 is expanding or contracting or remaining more 19 or less level over the -- 20 A. Total acreage for the specific 21 commodities has declined. 22 Q. How much since, say, 1979, when you 23 began with Florida Fruit and Vegetable 24 Association -- I am sorry with -- with South 25 Bay Growers? JACK BESONER AND ASSOCIATES 49 1 A. Well, celery acreage for the State 2 of Florida, and most of that is EAA 3 production, has gone down from 13,000 acres to 4 around 8,000 acres. 5 The sweet corn acreage is increasing 6 a little bit because everybody has decided 7 they like the new supersweet varieties and 8 there is a market out there. 9 The lettuce industry has declined in 10 numbers of people involved, but not 11 necessarily from the acreage. 12 Over all, there are fewer 13 individuals farms involved in vegetable 14 production now as there was was in 1979. 15 Q. Are the vegetable operations being 16 centralized or amalgamated into larger 17 operations? 18 A. Yes and no. A lot of it depends on 19 commodities. Vegetable production, especially 20 on the highly organic soils of EAA is a very 21 complex, specialized business, and it requires 22 very high level of capitalization to be able 23 to go in and start a vegetable production 24 industry just because of the specialized 25 equipment that you have to have from planters JACK BESONER AND ASSOCIATES 50 1 to sprayers to harvest machines and it's very 2 labor intensive. 3 You also have a marketing phenomenon 4 on the other end and unless you have got a 5 central core of enough production to support a 6 packing, selling, handling facility, it 7 doesn't make a lot of sense to go out there 8 and plant 40 acres of lettuce, celery, or 9 whatever. 10 You have got a certain minimum size 11 that you have to have in order to sustain the 12 economic viability of an industry. 13 Q. To acheive that economic viability, 14 then, you need a certain economy of scale? 15 A. Yes. 16 Q. So when, for example, 17 Mr. Schlechter and Mr. Pope say that 18 individual growers, the small grower, the 19 independent grower is becoming the dinosaur of 20 the EAA, that would match, to some degree, 21 your perception of the economics of the 22 operation? 23 A. What I have seen, yes. 24 Q. If I can refer your attention to 25 another set of minutes of the CARE committee JACK BESONER AND ASSOCIATES 51 1 dated November 21st, 1991. You were present 2 at that meeting, were you not? 3 A. Yes. 4 Q. On the second -- well, the bulk of 5 the minutes discusses a workshop at the water 6 management district held that day discussing 7 master permits and some other issues, right? 8 A. Yes, sir. I was not in attendance 9 at that workshop, no. 10 Q. You were just at the CARE committee 11 meeting? 12 A. Yes. 13 Q. On the second page of the minutes, 14 the first paragraph notes that there was 15 discussion of the Everglades SWIM Plan and a 16 motion to submit comments in writing as 17 drafted by Terry Cole for Frank Teets' 18 signature. 19 Although that is dated the 21st, is 20 that, in fact, the letter that we already have 21 as Exhibit 4 dated the 19th? 22 A. I would assume so. 23 Q. And it indicates that Mr. Hundley 24 was present and made the motion to submit that 25 document, correct? JACK BESONER AND ASSOCIATES 52 1 A. Yes. 2 MR. WATTS-FITZGERALD: Make that 3 Exhibit 5. 4 (Exhibit No. 5 was here marked for 5 identification purposes by the court 6 reporter). 7 Q. (BY MR. WATTS-FITZGERALD) Recent 8 developments on letterhead dated January 2nd, 9 1992 -- in a memorandum to the committee for 10 agricultural resources in the Everglades from 11 you on January 2nd, 1992, you discuss recent 12 developments; is that correct? 13 A. Yes. 14 Q. You note there that John Schlechter, 15 in the interim, had been elected to the board 16 along with David Beardsley. That refers to 17 what board? 18 A. The EPD, Environmental Protection 19 District. 20 Q. And that is the self-taxing district 21 in the EAA? 22 A. Right. 23 Q. What is the relationship between 24 FFVA and the EPD? 25 A. No direct relationship other than JACK BESONER AND ASSOCIATES 53 1 the fact that most of our members in the area 2 are also the people who are members of the 3 EAA/EPD because they are the landowners in the 4 area. 5 Q. Does FFVA, on behalf of its members, 6 maintain any liason with the EPD with regard 7 to research necessary to benefit its members? 8 A. Not as Florida Fruit and Vegetable 9 Association. The CARE committee does. 10 Q. Who, on the CARE committee, carries 11 out that function? 12 A. Well, Ed Barber is hired to do it, 13 but there is a committee of the EAA/EPD which 14 is coordinating the research which has 15 membership that includes CARE committee 16 people. 17 And I am not exactly -- Charles 18 Wilson was on it from South Bay Growers and I 19 am not sure who else is on that committee. 20 Q. To your knowledge, what research, if 21 any, is the EPD doing that is intended to 22 benefit the vegetable growers in the EAA? 23 A. I know they have several sites that 24 they are doing monitoring for water quality 25 information. JACK BESONER AND ASSOCIATES 54 1 Q. Where are they located? 2 A. I am not sure. I don't have the 3 individual locations. 4 Q. In broad terms, within the EAA water 5 conservation areas? 6 A. As far as I know, they are in the 7 EAA. 8 Q. Who would be the most knowledgeable 9 person about that operation within CARE? 10 A. Our consultant, Ed Barber. 11 Q. Other than monitoring water quality 12 at a number of sites in the EAA, is the EPD, 13 to your knowledge, conducting any other 14 research related to the water quality issues 15 in the Everglades SWIM Plan? 16 A. There are other components of their 17 proposal, but I haven't specifically looked at 18 those, no. 19 Q. Do you know what those components 20 are? 21 A. No. 22 Q. Would Mr. Barber be the most 23 knowledgeable on that? 24 A. Right. 25 Q. He notes that an oversight committee JACK BESONER AND ASSOCIATES 55 1 to work with IFAS on implementation of the 2 study proposal was appointed by the EPD and 3 that Frank Teets, Fritz Stein and Peter 4 Rosendahl were appointed to this committee. 5 Frank Teets was, at the time, the 6 chairman? 7 A. Yes. 8 Q. Is he still with CARE? 9 A. No. 10 Q. He has left the organization? 11 A. Yes. 12 Q. Is he still farming in the EAA? 13 A. No. 14 Q. Did he go out of business? 15 A. He resigned from being general 16 manager of South Bay Growers and is now 17 employed in the construction industry in West 18 Palm Beach. 19 Q. Who is Fritz Stein? 20 A. An ex-board member of the water 21 management district. He is a sugar cane 22 grower and a member of the co-op. 23 Q. What vegetable production is he 24 involved in? 25 A. None that I know of. JACK BESONER AND ASSOCIATES 56 1 Q. When you say the co-op, do you 2 mean the Florida -- 3 A. Sugar Cane Growers Co-op at Belle 4 Glade. 5 Q. Who is Peter Rosendahl? 6 A. He is an environmental person for 7 the Florida Sugar Cane League. This committee 8 was appointed by EPD. It's not a CARE 9 committee. 10 Q. I understand. And the CARE 11 committee designated Ed Barber to be the 12 technical representative or consultant or 13 overseer of the work of that committee on 14 behalf of CARE? 15 A. Well, Mr. Teets asked that CARE 16 support his activities by allowing Ed to serve 17 as his technical support. 18 MR. WATTS-FITZGERALD: We will make 19 that the next numbered exhibit, Exhibit 20 No. 6. 21 (Exhibit No. 6 was here marked for 22 identification purposes by the court 23 reporter). 24 Q. (BY MR. WATTS-FITZGERALD) The next 25 document will be the minutes dated April 7th, JACK BESONER AND ASSOCIATES 57 1 1992, one page. 2 Mr. Botts, have you ever read the 3 SWIM Plan, the March 13th, 1992, version 4 ultimately adopted by the board of the South 5 Florida Water Management District? 6 A. Not the whole document, no, sir. 7 Q. What portions have you read? 8 A. Part of the planning documents and 9 some of the sections of the support documents, 10 but I couldn't tell you exactly what pages. 11 Q. I understand that the page is -- 12 it's a fairly thick document -- can you tell 13 me the subject areas that you were interested 14 in that you reviewed in those documents. 15 A. It was primarily just to get a 16 general overview of what the document said. 17 Q. Have you reviewed the earlier 18 drafts, the five earlier drafts of the SWIM 19 Plan? 20 A. I have seen parts of two of them. I 21 have not reviewed them to any degree, no. 22 Q. So the parts of the two earlier 23 drafts that you did see, you reviewed those, 24 if at all and to a lesser extent, than you did 25 the March 13th? JACK BESONER AND ASSOCIATES 58 1 A. Right. 2 Q. Did you personally ever develop 3 comments to be sent to the board of the South 4 Florida Water Management District regarding 5 the SWIM Plan? 6 A. No, sir. 7 Q. Did the Florida Fruit and Vegetable 8 Association ever comment on those drafts or 9 final versions other than through CARE? 10 A. Not except through CARE, no, sir. 11 Q. Other than the letter that we have 12 dated November 19th, which is Exhibit 4, I 13 believe it is, did the CARE committee provide 14 any other written comments on the SWIM Plan to 15 the board of the South Florida Water 16 Management District or staff of the district? 17 A. I don't know. There were several 18 presentations and discussions that were held 19 between CARE representatives or members of 20 CARE, and I don't know whether any of the 21 direct members of CARE testified at the board 22 meeting where it was adopted over that 23 two-day period. 24 I am sure there probably were, but 25 written comments, I am not sure other than -- JACK BESONER AND ASSOCIATES 59 1 Q. Other than the one letter? 2 A. Other than the one letter, and 3 conversations as a result of that letter 4 between our technical consultant and 5 individual staff members or people at the 6 district. 7 Q. Did CARE ever attempt to develop 8 alternative language for any of the portions 9 of the SWIM Plan? 10 A. No, sir. 11 Q. At the meetings of CARE, what was 12 the general sense of the, if you have one, of 13 the members of that committee regarding the 14 acceptability of the final SWIM Plan to them? 15 A. Unfavorable. 16 Q. Did the steering committee, as the 17 action arm of the CARE committee itself, if 18 you will, ever suggest or in any way attempt 19 to get the committee to adopt formal written 20 comments in opposition to the SWIM Plan to be 21 sent to the board other than in the November 22 19th letter? 23 A. I don't know. The possibility of 24 the administrative challenge process was 25 discussed at several meetings and that was the JACK BESONER AND ASSOCIATES 60 1 quorum under which they felt was the most 2 effective way to address the issues that the 3 membership felt were important. 4 Q. Who broached the notion that a 5 formal administrative challenge was the most 6 effective way to address concerns of the 7 membership with the SWIM Plan? 8 A. I would assume it was on the advice 9 -- this is remembering discussions back -- 10 that go even before we were talking about an 11 actual document. 12 MR. RUSSELL: Excuse me. What is 13 the time frame that we are talking about 14 here? To the extent during the 15 representations of Peeples, Earl & Blank, to 16 the extent it's attorney/client discussions 17 that you are talking about, I will object. 18 MR. WATTS-FITZGERALD: I think I can 19 clarify that for you, Counsel. 20 MR. RUSSELL: I am not sure what you 21 are talking about. 22 Q. (BY MR. WATTS-FITZGERALD) According 23 to the testimony, correct me if I am wrong, 24 Peeples, Earl & Blank stopped representing 25 Florida Fruit and Vegetable Association JACK BESONER AND ASSOCIATES 61 1 somewhere around April of 1991. 2 And along about April 10th, plus or 3 minus, of 1991, Mr. Hoffman's firm was 4 retained to represent the CARE committee, and 5 my question was to the CARE committee. 6 MR. RUSSELL: And he started to go 7 back and he started to say prior to this time 8 is what I -- 9 THE WITNESS: I was addressing CARE 10 because that's when we formerly brought the 11 committee together to actually consider doing 12 something other than being a party, which was 13 under the work of your firm. 14 MR. WATTS-FITZGERALD: I would also, 15 for the record, note that it's not clear to me 16 if the witness can waive whatever privilege 17 might have existed, but I don't think it's an 18 issue here. 19 MR. HOFFMAN: I understood the 20 question to be who, at the CARE committee 21 meeting, thought it might be a good idea to do 22 it, even if he says "counsel," if that's as 23 far as it goes, that's okay. 24 If it gets into, "What did you 25 discuss," then -- JACK BESONER AND ASSOCIATES 62 1 MR. WATTS-FITZGERALD: And I am not 2 asking in that detail. 3 Q. (BY MR. WATTS-FITZGERALD) I guess 4 maybe another way to put it: Was this an idea 5 that was broached by counsel or was this an 6 idea that was broached by the members of the 7 committee, if you can recall? 8 A. The CARE committee? 9 Q. Yes. 10 A. I know that the CARE committee asked 11 what their options were on how to deal with 12 it, and that was one of the options that was 13 discussed by counsel. 14 Q. Did there come a time when the CARE 15 committee received -- well, let me finish that 16 topic before I move on. 17 Prior to the establishment of the 18 CARE committee, had the Florida Fruit and 19 Vegetable Association, to your knowledge, ever 20 reviewed earlier drafts of the SWIM Plan and 21 submitted any comments thereon? 22 A. No. 23 Q. Did there come a time when the CARE 24 committee received a presentation on 25 alternatives to the SWIM Plan suggested by JACK BESONER AND ASSOCIATES 63 1 other agri-industry sources in the EAA? 2 A. Yes, sir. 3 Q. Who made that presentation? 4 A. Malcolm Wade. 5 Q. Are you aware of Mr. Wade's 6 affiliation? 7 A. Yes. 8 Q. What is that? 9 A. He works for U.S. Sugar Corporation. 10 Q. Is he a vice president there? 11 A. I don't know what his official title 12 is. 13 Q. How did Mr. Wade come to make a 14 presentation to the CARE committee? 15 A. The Florida Sugar Cane League 16 requested that we meet and have the 17 presentation made on April 7th. 18 Q. Was that request directed to you? 19 A. Actually, I think it went to members 20 of the steering committee because at the time 21 the request came in, I was in the middle of a 22 tour with EPA officials on the lower-west 23 coast and I found out that the meeting was 24 going to take place about noon on Monday, the 25 7th. JACK BESONER AND ASSOCIATES 64 1 Q. Were you present at that meeting? 2 A. Yes, sir. 3 Q. If I can invite your attention to 4 the minutes of the April 7th, 1992 meeting, it 5 does not indicate you were there, but you, in 6 fact, were at that meeting and heard 7 Mr. Wade's presentation? 8 A. I drove over specifically from 9 Naples to be at that meeting. It's an 10 oversight on my part that it's not in the 11 minutes. I wrote them, too. That's the bad 12 part about the whole deal. 13 Q. So the various minutes that we have 14 been examining, you actually are the author of 15 those minutes? 16 A. All except for one meeting, and I am 17 not sure exactly which meeting. I would have 18 to go back and -- it's not any of these, I 19 don't think. 20 Q. Who, other than Mr. Wade, was 21 present from the Florida Sugar Cane League? 22 A. I don't think anybody unless Andy 23 Rackley but, if he was there, he would have 24 been shown in the minutes. I think Bubba was 25 the only one -- Malcolm was the only one that JACK BESONER AND ASSOCIATES 65 1 was there. 2 Q. The presentation made, was that a 3 slide show and -- 4 A. The same presentation they made at 5 the board meeting of the South Florida Water 6 Management District. 7 Q. I was going to ask that, were you at 8 the board meeting when the Sugar Cane League 9 subsequently made a presentation through 10 Robert Buker (phonetic) of their proposals? 11 A. I am going to have to ask a question 12 here, because I am not sure whether -- there 13 was a workshop -- that was the week of the 14 board meeting and I don't know whether they 15 made their presentation at the workshop -- 16 I was there for one of the two days 17 that the board met and I can't remember 18 whether I was there when Bob made the 19 presentation or not. I was there one of the 20 two days of the board meeting. 21 Q. But you saw the same presentation 22 being made to the board at some point, or you 23 are not certain? 24 A. I don't know that I ever saw the 25 official presentation. I could be wrong, JACK BESONER AND ASSOCIATES 66 1 because if it's the day -- if he made the 2 presentation the day I was at the board 3 meeting that started at 9:00 o'clock in the 4 morning and it was still going at 7:30 that 5 night and it tended to run together. 6 I just can't remember when the 7 presentation was made. 8 Q. Your notes state in the second 9 paragraph that it was projected that based on 10 sugar cane production areas only the total 11 phosphorus removal target under the SWIM Plan 12 could be achieved at mcuh lower direct cost 13 and STAs, stormwater treatment areas. 14 Who made that statement? 15 A. Based on the presentation that was 16 presented to us at that meetings. 17 Q. So it was your understanding from 18 Mr. Wade's presentation that the entire 19 phosphorus removal goal of the Everglades SWIM 20 Plan could be achieved solely by using these 21 alternative mechanisms on sugar cane lands in 22 the EAA? 23 A. Upon the presentation that was given 24 to us, yes. 25 Q. There must have been a lot of JACK BESONER AND ASSOCIATES 67 1 cheering among the CARE members to hear that. 2 A. That was one of the reasons why they 3 endorsed the alternative proposal. 4 Q. Did they send a letter to that 5 effect to the board? 6 A. Yes. 7 Q. Who authored the letter? The reason 8 I asked was I didn't see it in the materials. 9 A. I think Frank Teets did, and I am 10 not sure because -- 11 Q. Did you ever see the letter? 12 A. It was read into the minutes of the 13 board meeting that I attended of the water 14 management district. I don't know that I saw 15 a draft. I was traveling. I was not even in 16 the office during that period of time. 17 Q. But that endorsement was authored by 18 the entire CARE committee on April 7th? 19 A. Yes. 20 MR. HOFFMAN: Excuse me -- it looks 21 like that would be a document that would be 22 within your request and we will try and get 23 you a copy. 24 MR. WATTS-FITZGERALD: Counsel, I 25 recall the letter being read to the board, but JACK BESONER AND ASSOCIATES 68 1 I was not sure it was not just counsel making 2 a representation to the board with 3 Mr. Cole's usual efficiency, sounding very 4 formal. 5 MR. HOFFMAN: I have not seen it and 6 I have gone through boxes of documents. If we 7 have it, we can give it to you. 8 THE WITNESS: I don't know that I 9 have an actual copy of what was sent. I will 10 try and get one. I can get it from the water 11 management district. 12 Q. (BY MR. WATTS-FITZGERALD) I note 13 from your notes that the Sugar Cane League 14 requested that you endorse the proposal 15 through a letter to the board for the meeting 16 scheduled the following day. 17 So it may be that this was kind of a 18 slap it together and do it fast operation and 19 didn't make the file. 20 It's noted in your minutes that the 21 motion to recommend or support the proposal to 22 the board was made by John Schlechter and 23 seconded by E.L. Pope. Is that the 24 Mr. Schlechter and Mr. Pope that are listed as 25 petitioner parties? JACK BESONER AND ASSOCIATES 69 1 A. Yes. 2 Q. In the next paragraph it appears 3 that the call for volunteers went out during 4 the meeting; is that correct? 5 A. Yes. 6 Q. Who made the call for volunteers to 7 be listed or to fill in the blanks in the 8 draft petition for an administrative hearing 9 to challenge the SWIM Plan? 10 A. I suspect it was probably mine. 11 Q. Why would you have been in the 12 position of asking for volunteers to become 13 the legal challengers or the named challengers 14 -- to stay away from a legal judgment. 15 A. Advice of counsel. 16 Q. What counsel was present at that 17 meeting? 18 A. None. The draft document came to 19 me, and then a phone call earlier in the day 20 -- the draft document that was circulated had 21 blanks for named farms within the area. 22 Q. How long had you had the document at 23 that point? 24 A. I don't know that I got a copy of it 25 until I got to the meeting that night, because JACK BESONER AND ASSOCIATES 70 1 I am not sure exactly how -- I don't remember. 2 Q. Prior to accepting the volunteering 3 by Louis Pope Farms, W. Lee Schlechter & Sons 4 and Hundley Farms, did you make any effort to 5 ascertain if they had even read the SWIM Plan 6 they were purporting to volunteer to 7 challenge? 8 A. Me personally, no. 9 Q. Did you ask them? 10 A. No. 11 Q. To your knowledge, had they read the 12 SWIM Plan that they were lining up to 13 challenge? 14 A. They had been involved in the 15 discussions that lead to the decision to 16 proceed with an administrative challenge. 17 They received the same background information 18 on the documents that were there from counsel 19 and our technical consultant that the rest of 20 the members of CARE had. 21 Q. And that all occurred at earlier 22 meetings? 23 A. There had been discussions of what 24 was being proposed in the draft before at 25 earlier meetings. JACK BESONER AND ASSOCIATES 71 1 Q. Now, your technical consultants were 2 not at the meeting on April 7th, were they? 3 A. No. 4 Q. So you didn't even have an 5 opportunity to discuss amongst yourselves with 6 their input whether the whole proposal as 7 given you by Mr. Wade had enough science -- 8 whether it was voodoo science or not, you had 9 no technical consultant there to give you an 10 opinion on what was being proposed? 11 A. No. 12 Q. Had you received any written 13 materials in advance of that presentation from 14 the Florida Sugar Cane League or Mr. Wade? 15 A. No, sir. 16 Q. Had any of the test sites for 17 alternative phosphorus removal methods 18 discussed by Mr. Wade during that proposal 19 that were located on lands of any of your 20 members? 21 A. I am not sure. 22 Q. He didn't identify the sites? 23 A. Not in the presentation I saw, no, 24 sir. 25 MR. WATTS-FITZGERALD: Let me make JACK BESONER AND ASSOCIATES 72 1 the minutes of the April 7th meeting, Exhibit 2 No. 7. 3 (Exhibit No. 7 was here marked for 4 identification purposes by the court 5 reporter). 6 Q. (BY MR. WATTS-FITZGERALD) The SWIM 7 Plan adopted by the board of South Florida 8 Water Management District contemplates 9 retention of water as the best management 10 practice solely on sugar cane lands. 11 Has there ever been any discussion 12 by the CARE committee or FFVA of the 13 possibility of retaining water as well as a 14 BMP on lands devoted to vegetable production? 15 A. Some of the individual growers have 16 looked at the possibility of doing that on 17 their particular farms where there is a land 18 area large enough to maintain the base level 19 of production and they grow enough commodities 20 as a total association or a group of people. 21 Q. Have your technical consultants 22 expressed an opinion to their CARE committee 23 members over the desirability or feasability 24 of retaining water as a way of reducing the 25 phosphorus loading in the runoff of the JACK BESONER AND ASSOCIATES 73 1 vegetable farms? 2 A. I am trying to think back -- it has 3 been discussed by members of the technical 4 committee to CARE which included A. Duda & 5 Sons and South Bay Growers as one of the 6 options that was available. I don't know what 7 kind of detail they went into to present it as 8 an option for all of the members of CARE. 9 One of the things that vegetable 10 farmers do in the EAA is land flooding for 11 disease control and pest control in a 12 summertime period. I don't know that that is 13 the same type of retention that you are 14 talking about. 15 I know the primary concern of most 16 of the vegetable producers is the fact that we 17 don't lose that option through anything that 18 comes in because you have to recognize that a 19 lot of the direct day-to-day concern out there 20 over the past three or four years has not been 21 in a period of excess water. 22 It's been in a period of drought and 23 a period of not enough water to do that 24 flooding and the restrictions that they have 25 had on them. JACK BESONER AND ASSOCIATES 74 1 Q. Where do your members acquire the 2 water to flood their land during a period of 3 drought? 4 A. They manage all that falls on their 5 land the best they can, and then they apply -- 6 during drought periods it's under permit from 7 the water management district. 8 Q. They withdraw it from the primary 9 canals of the Central and South Florida Flood 10 Control Project? 11 A. If they have to. Unless they have 12 enough rainfall on a large enough piece of 13 land that they can manage their internal water 14 to get enough to flood. 15 Q. In a period of drought, almost by 16 definition, would it not be impossible to get 17 enough water to flood your land from rainfall? 18 A. No. You forget the nature of 19 Florida summertime thunderstorms, which is 20 what period we are talking about, and you can 21 get an isolated storm that drops two inches of 22 rain onto a portion of your farm and if you 23 are only flooding a small percentage of 24 acreage of your farm, you can capture enough 25 water in that scenario to flood land. JACK BESONER AND ASSOCIATES 75 1 Q. Prior to signing on Pope Farms, 2 Schlechter Farms and Hundley Farms as specific 3 named petitioners, did anybody discuss with 4 them, in your presence, the 1985 allegations 5 of material fact alleged in the petition 6 challenging those facts as being erroneous in 7 the SWIM Plan? 8 A. Not on a point by point basis, no. 9 Q. Did anybody, on a point by point 10 basis, discuss the scientific deficiencies of 11 those material facts in the Everglades SWIM 12 Plan? 13 A. In general terms, our technical 14 consultant, who is the one who is the primary 15 preparer of most of those points, detailed the 16 fact that there were internal consistencies 17 between the various parts of the SWIM Plan 18 documentation and that's what the facts, as I 19 understand it, were based on. 20 Q. Who was that? 21 A. Ed Barber. 22 Q. Are you familiar with the locations 23 proposed in the SWIM Plan for the four STAs, 24 the geographical locations? 25 A. General locations, yes. JACK BESONER AND ASSOCIATES 76 1 Q. Are any of those four locations 2 currently in use or portions thereof in use as 3 vegetable land? 4 A. There are portions of the STA in the 5 northeast corner at the north end of the 6 Loxahatchee that are in vegetable production, 7 if I can read the map right. 8 Q. STA 1, you mean? 9 A. I would have to look at a map. The 10 one right at Twenty Mile Bend. 11 Q. Are you familiar with what is 12 referred to by the district as the Everglades 13 Nutrient Removal Project? 14 A. Is that the nitrite -- 15 Q. Yes. 16 A. Yes. 17 Q. Is that the area you are speaking 18 of? 19 A. Farther north from there. 20 Q. Who is farming that area of 21 vegetables, if you know? 22 A. I know that one of the land owners 23 in the area is Ricky Roth, who is a member of 24 Roth Farms. I don't know whether that land is 25 in vegetables right now. I know it's been JACK BESONER AND ASSOCIATES 77 1 rotated in the various commodities he grows. 2 Q. So when it's fallow from sugar cane, 3 he may be using it as vegetable production? 4 A. Carrots, radishes, leaf products. 5 (A brief recess was here had). 6 Q. (BY MR. WATTS-FITZGERALD) Does the 7 Florida Fruit and Vegetable Association 8 provide information to any federal agencies on 9 the production statistics of its members? 10 A. No. 11 Q. Go ahead. 12 A. In the petition for Section 18 in 13 specific exemptions we use the same data there 14 to go to EPA to show acreage of production 15 numbers for labeling and licensing of 16 pesticides under specific conditions. 17 Q. So any data that would be collected, 18 say, by USDA, on production or costs, 19 expenses, et cetera, would be acquired 20 directly from your members, not through your 21 organization? 22 A. Not through us. 23 Q. So your organization does not 24 collect any of that sort of data. 25 A. No. JACK BESONER AND ASSOCIATES 78 1 Q. Did members of the CARE committee 2 also belong to the co-op or the Florida Sugar 3 Cane League? 4 A. I am sure they do, the ones that 5 grow cane. They have to have a place to mill 6 it. 7 Q. Good point. In Exhibit 1, the 8 notice of deposition, one of the requests for 9 documents involved records and correspondence, 10 et cetera, related to membership's decision to 11 join in the administrative petition 12 challenging the Everglades SWIM Plan. 13 Did your consultant prepare for the 14 CARE committee any documents that have not 15 been produced in response to that request 16 under a claim of privilege? 17 A. Not that I am aware of. 18 Q. Ed doesn't put anything in writing? 19 A. I don't have anything other than 20 what you have. 21 Q. Well, the reason I was asking is the 22 paragraph contemplates within it that there 23 might be circumstances where something that 24 was produced that would fall within that 25 request might be privileged under JACK BESONER AND ASSOCIATES 79 1 attorney/client privilege or something of that 2 nature. 3 And I am simply asking: Was 4 anything withheld under a claim of privilege 5 of any sort? 6 A. No. 7 Q. FFVA and CARE maintained no records 8 of the location of the property of its members 9 within EAA? 10 A. No, sir. 11 Q. CARE and/or Florida Fruit and 12 Vegetable Association have no documents 13 regarding water quality or quantity issues 14 other than what you have provided that relate 15 to the issues in your challenge to the SWIM 16 Plan? 17 A. No, sir. 18 Q. Has CARE or the Florida Fruit and 19 Vegetable Association funded any research or 20 study projects other than the one IFAS water 21 quality project we have discussed already to 22 substantiate its claims of 85 material factual 23 errors in the SWIM Plan as alleged in your 24 petition? 25 A. No, sir. JACK BESONER AND ASSOCIATES 80 1 Q. Has CARE or FFVA conducted any tests 2 or efforts to determine if there are 3 alternatives to the cleanup strategies 4 outlined in the SWIM Plan? 5 A. No, sir. 6 Q. Have you participated, either of 7 those entities, in any way, with Florida Sugar 8 Cane League or the co-op in developing 9 alternatives? 10 A. Not as Florida Fruit and Vegetable 11 Association or CARE. 12 Q. Is it your understanding that 13 individual members have assisted in that 14 process? I mean, you qualified your answer 15 and I am just trying to find out why. 16 A. I have not directly participated or 17 have knowledge of any activities of my 18 membership on what has been done relative to 19 the efforts of either the co-op or the Sugar 20 Cane League. They are in business with those 21 entities in the Glades and how they cooperate 22 with them, I don't have any idea or any way of 23 knowing. 24 Q. Has your membership, the CARE 25 committee members discussed what impacts, in JACK BESONER AND ASSOCIATES 81 1 fact, the SWIM Plan would have on them 2 recognizing that it's merely a planning 3 document? 4 A. The fact that the options and the 5 alternatives that are put forward in the SWIM 6 Plan do represent potential economic impacts, 7 whether it's a tax to pay for the STAs or 8 putting land into retention areas, they do 9 have an economic interest in what the SWIM 10 Plan does. 11 Even though it is a planning 12 document, it has specific timetables in it for 13 specific actions that need to be taken, and 14 those actions will impact the members. 15 MR. HOFFMAN: Just for the record, I 16 I want to impose an objection to the form of 17 the question even though it's already 18 answered. 19 But just for the record, the phrase 20 was used that it's only merely a planning 21 document, which would suggest it's false, 22 because it requires massive expenditures of 23 money and STAs, et cetera, and those 24 requirements have now been implemented by 25 inclusion in a permit, which is also under JACK BESONER AND ASSOCIATES 82 1 challenge: 2 Therefore, it's not merely a 3 planning document. So we object to that kind 4 of form of the question. 5 MR. WATTS-FITZGERALD: I understand, 6 but I would have to note in counterpoint that 7 the permit challenge is not part of this 8 action as yet, and that the document speaks 9 for itself, that it's merely a planning 10 document and the document does not commit 11 funds or compel any activity in and of 12 itself. 13 The DER permit is a different 14 entity's action of the South Florida Water 15 Management District based on statutory 16 requirements. 17 MR. HOFFMAN: Well, there is no 18 sense in us lawyers having a field day here. 19 MR. WATTS-FITZGERALD: And 20 lengthening the record. 21 MR. HOFFMAN: I could add and go on 22 longer than a day about that. 23 MR. WATTS-FITZGERALD: I am sure we 24 could and will elsewhere. 25 MR. HOFFMAN: I think weeks. JACK BESONER AND ASSOCIATES 83 1 MR. WATTS-FITZGERALD: And 2 have.....have. 3 Q. (BY MR. WATTS-FITZGERALD) When the 4 presentation was made by Bubba Wade to the 5 CARE committee, did he leave behind copies of 6 that presentation or handouts? 7 A. No, sir. 8 Q. Upon what does the Florida Fruit and 9 Vegetable Association base its claim that 10 there was coercive influence by the Federal 11 Government on the SWIM planning process? 12 MR. HOFFMAN: I will object. I have 13 my amended petition here and I don't see that 14 allegation of coercive influence. 15 Can you tell me what paragraph you 16 read that allegation in? 17 MR. WATTS-FITZGERALD: No, I don't 18 have it. I don't have the plan in front of 19 me. I had it in front of me when I drafted 20 this. 21 MR. HOFFMAN: The only allegation in 22 our petition dealing with the settlement 23 agreement is at Paragraph 19, Paren 2, which 24 just questions whether the plan's 25 determination of a requirement for STAs is JACK BESONER AND ASSOCIATES 84 1 actually part of a settlement agreement. 2 That's all it says. 3 So I just don't know where the 4 coercion language comes from in those 5 documents. 6 MR. WATTS-FITZGERALD: Well, I have 7 got no documents to demonstrate it, but that 8 was not what I asked him. The question was a 9 little bit different. 10 I will rephrase the question if 11 that's a problem. 12 Q. (BY MR. WATTS-FITZGERALD) Does the 13 CARE committee or the FFVA take the position 14 that the SWIM Plan was a result of federal 15 coercion of the South Florida Water Management 16 District? 17 A. Not personally, I have no knowledge 18 of us taking that position. 19 Q. Have you ever heard that discussed 20 at a CARE committee meeting? 21 A. Not in those terms, no. 22 Q. Have any documents requested or that 23 would arguably fall within the request of the 24 Exhibit 1 notice been withheld in whole or in 25 part under a claim of privilege? JACK BESONER AND ASSOCIATES 85 1 MR. WATTS-FITZGERALD: That is your 2 cue. 3 MR. HOFFMAN: There are no 4 documents. There were a couple of blanks made 5 in minutes, if that's what you mean. 6 MR. WATTS-FITZGERALD: Yes. 7 MR. HOFFMAN: Those just dealt with 8 discussions of other law firms that are not 9 even in this case in any way and farmers' 10 problems that might require litigation that 11 does not involve the U.S. Government in any 12 way: 13 And therefore it was removed because 14 it was privileged and not relevant and 15 wouldn't lead to anything regarding this case. 16 MR. WATTS-FITZGERALD: And you 17 deemded that, in your judgment, on your 18 response -- 19 MR. HOFFMAN: Correct. 20 Q. (BY MR. WATTS-FITZGERALD) Mr. Botts, 21 what is your understanding of your role as a 22 witness in this case on behalf of the Florida 23 Fruit and Vegetable Growers? 24 Put another way, what do you think 25 you are going to be testifying about, if you JACK BESONER AND ASSOCIATES 86 1 know? 2 A. FFVA's role in coordinating the 3 activities of their membership. 4 Q. Do you foresee testifying in regard 5 to any matters beyond the scope of the 6 questioning here today? 7 A. No, sir. 8 Q. Have you reviewed with anyone, prior 9 to today, the scope of your anticipated 10 testimony in the final hearing? 11 A. No. 12 Q. So at the time that you were 13 designated as a possible witness on behalf of 14 the FFVA, you had not scoped out first just 15 what that testimony might be? 16 A. I relied on counsel to tell me what 17 I was getting into. 18 Q. Well, I am not going to comment on 19 the wisdom of taking that course. You 20 provided a document in the materials that is 21 captioned, "Circular 1064, Production Costs 22 for Selected Vegetables in Florida, 1991 23 through 1992," by a Mr. Smith and Mr. Taylor 24 at Florida Cooperative Extension Service at 25 IFAS. JACK BESONER AND ASSOCIATES 87 1 A. Yes. 2 Q. Do you recognize that? 3 A. Yes. 4 Q. Is that a document customarily 5 employed by FFVA and its members to analyze 6 their costs of production? 7 A. That's the only source of 8 information that I have access to on those 9 related issues. 10 Q. Do you rely upon the data therein? 11 A. We have used it in the past, yes. 12 Q. And have you found it to be accurate 13 in the past? 14 A. We have found there to be holes in 15 this relative to the things that I 16 specifically work in, such as pesticide costs 17 and production practice. 18 As an overall document, I can't 19 comment as to the quality of it. I am not an 20 economist. 21 Q. Have your members ever indicated to 22 you since you have utilized some of the 23 information therein in the past that it was 24 not accurate, the data was not accurate in 25 some way? JACK BESONER AND ASSOCIATES 88 1 A. We have had members and have members 2 now who question the profitability numbers 3 that are portrayed in those documents. 4 Q. Did they feel, those who challenge 5 it, do they feel that the Circular 1064 6 overstates their profitability or understates 7 it? 8 A. Overstates. 9 Q. So in their view, the economics of 10 production in the EAA for their products are 11 such that they do not realize as high a profit 12 as this production cost document would 13 suggest? 14 A. Yes. 15 Q. You also provided a document, 16 "Florida Agricultural Statistics," by a 17 service of the same name, "Vegetable Summary, 18 1990/1991." To what use is that document put? 19 A. That's essentially the document that 20 USDA uses and the State of Florida uses to 21 document production of various vegetable 22 commodities in the state and to give the 23 historical information on what it has been and 24 what the costs have been. 25 Q. And how has the accuracy of that JACK BESONER AND ASSOCIATES 89 1 report stacked up in your estimation? 2 A. I have never had any need or any 3 information that would lead me to believe that 4 direct comparisons and numbers, that that is 5 not the best available information that there 6 is. 7 Q. Have you heard complaints about the 8 information in there from your members? 9 A. Not of the degree that would cause 10 me to question it as being the best source 11 that I have. There is always questions on 12 what acreage gets counted in the production 13 number and how those numbers are turned in. 14 Both of these are based on voluntary 15 contributions of growers to an entity that 16 makes a survey or picks up a phone and calls 17 them. From that standpoint, it's not audited 18 that much. 19 Q. You were aware, were you not, that 20 the USDA does, in fact, conduct limited audits 21 to verify the data they include in their 22 reports on crop production costs, et cetera? 23 A. For some commodities. 24 Q. Are you aware of any of your members 25 ever participating in one of those audits? JACK BESONER AND ASSOCIATES 90 1 A. Not for vegetable production. 2 Q. Meaning solely for sugar cane 3 production? 4 A. I wouldn't -- the USDA Agricultural