1

1 Division of Administrative Hearings

2 Department of Administration, State of Florida

3 SUGAR CANE GROWERS COOPERATIVE )

of FLORIDA; ROTH FARMS, INC.; and, )

4 WEDGEWORTH FARMS, INC., )

Petitioners, )

5 V ) DOAH

SOUTH FLORIDA WATER MANAGEMENT ) Case 92-3038

6 DISTRICT, an agency of the State )

of Florida; et al., )

7 Respondents. )

FLORIDA SUGAR CANE LEAGUE, INC.; )

8 UNITED STATES SUGAR CORPORATION; )

and NEW HOPE SOUTH, INC., )

9 Petitioners, )

V ) DOAH

10 SOUTH FLORIDA WATER MANAGEMENT ) Case 92-3039

DISTRICT, an agency of the State )

11 of Florida; et al., )

Respondents. )

12 FLORIDA FRUIT and VEGETABLE )

ASSOCIATION; LEWIS POPE FARMS; )

13 W.E. SCHLECHTER & SONS, INC., )

and HUNDLEY FARMS, INC., )

14 Petitioners, )

V ) DOAH

15 SOUTH FLORIDA WATER MANAGEMENT ) Case 92-3040

DISTRICT, an agency of the State )

16 of Florida; et al., )

Respondents. )

Volume I

18 Deposition of John Dunckelman, Ph.D.

19 Taken before April Y. Sapp, Court Reporter

and Notary Public in and for the State of Florida at

20 large, pursuant to notice of taking deposition filed

by the Petitioners in the above cause.

21 - - -

Wednesday Januaary 20, 1993

22 319 Clematis Street, 5th Floor

West Palm Beach, Florida 33401

23 10:15 - 11:55 a.m.

- - -

1 APPEARANCES:

On behalf of the Petitioners Florida Sugar

3 Cane League, Inc., United State Sugar Corp.,

and New South Hope, Inc.:

4 Peeples, Earl & Blank, P.A.

One Biscayne Tower, Suite 3636

5 Two South Biscayne Boulevard

Miami, Florida 33131

6 By: DENNIS M. STOTTS, ESQUIRE

7 On behalf of the Respondent SFWMD:

Popham, Haik, Schnobrich & Kaufman, Ltd.

8 4000 International Place

100 S.E. Second Street

9 Miami, Florida 33131

By: PAUL NETTLETON, ESQUIRE

On behalf of the Intervenor United States of America:

11 Assistant United States Attorney

Southern District of Florida

12 155 South Miami Avenue, Suite 627

Miami, Florida 33130-1693

13 By: ROBERT ROSENBERG, ESQUIRE

1 - - -

2 I N D E X

3 - - -

5 WITNESS: DIRECT CROSS REDIRECT RECROSS

6 John Dunckelman, Ph.D.

BY MR. NETTLETON 5

1 - - -

2 E X H I B I T S

3 - - -

5 NUMBER PAGE

6 EXB. NO. 1 6

7 Resume of witness

8 EXB. NO. 2 13

9 Article: The effect of row spacing and

10 subsurface drainage treatments.

11 EXB. NO. 3 13

12 Article: Yield response of sugar cane to

13 stalk density and subsurface drainage

14 treatments

15 EXB. NO. 4 37

16 Excerpt from SWIM Plan planning document

17 3-13-92

18 EXB. NO. 5 61

19 Chapter 40E-63 Everglades Regulatory Program

20 EXB. NO. 6 65

21 Draft Technical Document 3-3-92

22 Re: Chapter 40E-63

1 P R O C E E D I N G S

2 - - -

3 Thereupon,

4 John Dunckelman, Ph.D.

5 being by the undersigned Notary Public first duly

6 sworn, was examined and testified as follows:

7 THE WITNESS: I do.

8 DIRECT (John Dunckelman, Ph.D.)

9 BY MR. NETTLETON:

10 Q. Sir, could you state your name for the

11 record, please.

12 A. My name is John Dunckelman.

13 Q. And what is your current position?

14 A. Vice President Agricultural Research for

15 Florida Sugar Cane League.

16 Q. Is it Mr. or Dr. Dunckelman?

17 A. It's Doctor.

18 Q. Dr. Dunckelman, my name is Paul Nettleton.

19 I'm an attorney representing the South Florida Water

20 Management District in this litigation. I'm going to

21 be asking you a series of questions. If you don't

22 understand any question I ask, please let me know and

23 I'll attempt to rephrase it so that you're answering

24 the same question I'm asking.

25 Do you understand that?

1 A. Yes.

2 MR. NETTLETON: I'd like to start just by

3 having your resume marked.

4 (The document was marked Exb. No. 1.)

5 BY MR. NETTLETON:

6 Q. Sir, if you could look at what's been

7 marked as Exhibit 1. Is this the most recent draft

8 of your resume?

9 A. Yes. This is the last resume I have.

10 Q. When was this prepared?

11 A. Oh, it was prepared three years ago prior

12 to being hired by the Florida Sugar Cane League.

13 Q. So it would be about 1990?

14 A. I believe it was '89.

15 Q. Do you recall about what period in '89?

16 A. I think it was near the end of the year.

17 Q. Is this resume accurate up to that time,

18 the end of 1989?

19 A. Yes.

20 Q. Could you tell me what an agronomist is?

21 A. Well, what an agronomist is is a person who

22 deals with extensively farmed crops like, you know,

23 large scale field crops; cotton, corn, sugar cane,

24 rice, those types of crops.

25 Q. And I see from your resume you hold a

1 bachelor's in animal science, is that correct?

2 A. Yes. That's correct.

3 Q. And you have master's in agronomy?

4 A. Right.

5 Q. And a Ph.D. in agronomy?

6 A. Correct.

7 Q. Did you have to prepare a thesis for your

8 master's?

9 A. No. I did a non-thesis master's and I

10 prepared a dissertation.

11 Q. What was the dissertation on?

12 A. My dissertation was entitled, the Breeding

13 Behavior of Ratooning Ability in Sugar Cane.

14 Q. Is that what you have listed under your

15 Ph.D. on your resume?

16 A. Yes.

17 Q. Did you prepare any other type of thesis

18 for your master's separate from that?

19 A. No, I did not.

20 Q. I see from your resume here that you were

21 employed by the USDA beginning in January 1981, is

22 that right?

23 A. That's correct.

24 Q. Prior to 1981 and from your graduation in

25 1976 from undergrad were you employed anywhere?

1 A. No. Well, I had an assistantship at

2 Louisiana State University to work on my master's and

3 Ph.D. in agronomy. From that standpoint, yes, I was

4 employed by the university.

5 Q. What did that involve?

6 A. Well, it was simply an assistantship where

7 in I was given a small stipend as a student and in

8 return for that I merely had to, you know, work

9 toward my Ph.D. and complete the research project

10 that I had chosen to do, which was this dissertation

11 in this experiment in sugar cane breeding.

12 Q. Since you acquired your Ph.D. in 1982 have

13 you acquired any additional degrees or educational

14 certificates of any kind?

15 A. None that I can think of right now.

16 Q. How did you learn about the Florida Sugar

17 Cane League for purposes of sending your resume to

18 them?

19 A. Well, I was employed as a plant breeder in

20 Louisiana by USDA I would come here on a yearly basis

21 in December to hybridize plants at our experiment

22 station at Canal Point and that's how I became aware

23 of this job.

24 Q. And what position were you initially hired

25 into?

1 A. My title originally was Director of

2 Agricultural Research.

3 Q. What did that involve as far as your duties

4 and responsibilities?

5 A. Well, the Ag Research Department at the

6 Florida Sugar Cane League, we have a Research Grants

7 Program where we review -- where we solicit and

8 review agricultural research proposals from

9 scientists who are doing work in sugar cane research

10 and we fund those through a direct assessment to

11 growers and we also are involved in the cooperative

12 breeding effort between USDA, IFAS and the Florida

13 Sugar Cane League and for our part we help in

14 locating co-operators for the large scale field

15 trials of new sugar cane varieties and we also

16 increase the seed cane for distribution and sale of

17 new varieties. Those are the main duties that we

18 perform.

19 Q. Okay. You were talking about the Research

20 Department in general, but what was your role as the

21 Director?

22 A. Well, my role as Director was to oversee

23 that program.

24 Q. What kind of things did you do on a day to

25 day basis as Director?

1 A. Can I -- can you be a little more specific?

2 I mean that's a very general question.

3 Q. Was it primarily an administrative job that

4 you were in?

5 A. Yes.

6 Q. And when did you become first employed with

7 the Florida Sugar Cane League?

8 A. I believe it was March 1, 1990.

9 Q. How long did you stay in the position of

10 Director of Agricultural Research?

11 A. I don't recall exactly.

12 Q. Approximately.

13 A. It's probably close to about half the time

14 I have been here.

15 Q. And what position did you next move into?

16 A. Well, I was promoted next to Vice President

17 Agricultural Research.

18 Q. That's your present position?

19 A. Yes, it is.

20 Q. What is your current role as Vice

21 President? What do you do?

22 A. It hasn't changed any. It's mostly a

23 change in title.

24 Q. Did you have a supervisor when you were

25 Director? Who was your direct supervisor?

1 A. Well, the direct supervisor of all the

2 staff at the League is Andy Rackley who's the General

3 Manager.

4 Q. That would be the same for your current

5 position as Vice President?

6 A. Yes.

7 Q. Have you ever testified as an expert

8 before?

9 A. No, I have not.

10 Q. Have you ever testified as a fact witness

11 before?

12 A. No, I haven't.

13 Q. Have you ever been deposed?

14 A. No, I have not.

15 Q. Have you published any articles in the

16 field of agronomy?

17 A. Yes.

18 Q. Can you tell me how many and what the

19 titles are?

20 A. I don't know exactly how many, but it's

21 probably somewhere around 20 and titles are going to

22 be difficult for me to remember.

23 Q. Are these articles that you were the

24 principal author on or also including coauthor?

25 A. Most of them were coauthored.

1 Q. Any specific articles that you've authored

2 that relate to the subject matter of your proposed

3 testimony in this case?

4 A. Not specifically to Florida, no. I have

5 not published since I've taken this job. I don't

6 think I've published anything.

7 Q. Any of the articles that you have

8 published, authored or coauthored, do they concern

9 implementation or use of best management practices?

10 A. For best -- may I ask you when you are

11 speaking about best management practices? Are you

12 talking specifically about best management practices

13 for phosphorous control in this case?

14 Q. Let's start generally, just best management

15 practices for farm activity in general.

16 A. Well, none of the articles that I've ever

17 been involved in actually used that terminology.

18 Q. What does Best Management Practices mean do

19 you? How do you define that?

20 A. Well, I think from the standpoint of

21 farming it means a practice that, number 1, doesn't

22 reduce yield or your productivity and, number 2, it

23 works to either -- to some other advantage that you

24 may be seeking, be it phosphorus control, erosion

25 control or whatever.

1 Q. If a particular strategy worked to reduce

2 yield to any extent would you consider that not a

3 valid BMP?

4 A. I would consider that not a valid BMP, yes.

5 Q. Have you reviewed or relied upon any of the

6 articles that you yourself have either authored or

7 coauthored for purposes of preparing your testimony

8 in this matter?

9 A. As a matter of fact, I did bring, I think,

10 two articles today that I was coauthor on that are

11 sitting there before you and I brought those to

12 demonstrate that I have done some research work

13 looking at the effect of water table elevation on the

14 yield of sugar cane crops.

15 Q. Are these the two that you're referring to?

16 A. Yes. These are the two that I'm referring

17 to.

18 Q. Okay.

19 MR. NETTLETON: Can we go ahead and have

20 those marked as 2 and 3.

21 (The documents were marked Exb. Nos. 2-3.)

22 BY MR. NETTLETON:

23 Q. Dr. Dunckelman, I assume you're aware that

24 the League as well as U.S. Sugar Corporation, New

25 Hope South and a number of other agricultural

1 interests have filed petitions challenging the

2 District's Everglades SWIM Plan. Are you familiar

3 with that litigation?

4 A. Only in general terms. I know it exists.

5 (Whereupon, Mr. Rosenberg entered.)

6 BY MR. NETTLETON:

7 Q. Are you also aware that the League as well

8 as U.S. Sugar Corporation, New Hope South and a

9 number of other agricultural interests have filed

10 petitions challenging or disputing the permit that

11 the District has applied for with DER concerning

12 discharges into the Everglades Protection Area?

13 A. No. I'm not specifically aware of that.

14 Q. Are you aware that the Florida Sugar Cane

15 League, U.S. Sugar Corporation, New Hope South have

16 identified you as an expert who will be testifying in

17 these cases?

18 A. I -- no, I wasn't, actually. Not New Hope

19 South. That's news to me. I really haven't -- you

20 know, I knew I was being identified, but specifically

21 by whom other than the League, I really hadn't paid

22 that much attention to that.

23 Q. You were aware that the League had

24 identified you as a testifying expert in the case?

25 A. Yes.

1 Q. Can you tell me how you got involved in the

2 litigation aspect, who first approached you to

3 discuss testifying in the case?

4 A. I don't specifically recall who it was.

5 Q. Was it someone from the League or someone

6 from their outside attorney's office?

7 A. I don't really recall who it was. I mean

8 that's been awhile back.

9 Q. How far back was it when you were first

10 approached to discuss testifying in the case?

11 A. I don't remember.

12 Q. A year, two years?

13 A. Yeah. Something like that. I mean I don't

14 know specifically.

15 Q. What were you asked to do?

16 A. Well, to the best of my recollection, I was

17 just asked, you know, to testify as an agronomist on

18 general agriculture.

19 Q. Anything more specific than that? Were you

20 asked to offer opinions in any specific areas?

21 A. No.

22 Q. Have you formulated any opinions in any

23 specific areas which you intend to testify to at the

24 final hearing in this matter?

25 A. You know, other than opinions about the

1 effect of BMPs on the crop, no.

2 Q. Well, let's talk about that. What opinions

3 do you have concerning the effects of BMPs on crops?

4 A. Well, you know, the IFAS BMPs call for, as

5 well as some of the League BMPs, especially the pump

6 BMP calls for elevation of water tables and it varies

7 between sugar cane and vegetables, but in sugar cane,

8 I think, you know, or in any crop, when you elevate

9 the water table you run the risk of increased

10 flooding during periods of high rainfall and this

11 could be detrimental to the crop.

12 Q. Is it your opinion, then, that by

13 implementing a BMP which requires elevating the water

14 table, that this could be adverse to the crop?

15 A. I think there's a risk that it could be

16 adverse to the crop.

17 Q. Have you quantified that risk?

18 A. No, I have not.

19 Q. And any other opinions concerning any of

20 the BMPs and their effects on crops?

21 A. You know, I think that the final verdict on

22 those BMPs will only be known when the research is

23 completed. We only have early, early indications on

24 some of those things.

25 MR. STOTTS: Counsel, it might be helpful

1 if we were able to identify what the BMPs are.

2 MR. NETTLETON: He's been identified as an

3 expert in the case who is going to testify. I

4 assume coming in here he knew specifically what

5 he was planning to testify.

6 MR. STOTTS: Your question is: What are

7 the effects of the BMPs?

8 MR. NETTLETON: I was using his words.

9 BY MR. NETTLETON:

10 Q. You referenced, I believe, the IFAS BMPs.

11 Is that what we're referring to?

12 MR. STOTTS: I don't recall that reference,

13 but if so --

14 THE WITNESS: Well, those are certainly

15 part of the BMPs.

16 BY MR. NETTLETON:

17 Q. I believe you had indicated earlier that

18 one of the BMPs or a series of the BMPs that have

19 been recommended by IFAS included elevation of water

20 table, is that right?

21 A. That's correct.

22 Q. And I believe that you expressed the

23 opinion that this could have an adverse effect or

24 increases a risk of crop damage.

25 A. That's correct.

1 Q. And I believe you also stated that, in your

2 opinion, the final verdict on the effectiveness of

3 the BMPs cannot be determined until all the research

4 is completed.

5 A. That's right, because all we have to this

6 point is research in small plots and we haven't

7 really taken it out and gone into full scale

8 implementation at farm level which is being done now

9 by IFAS.

10 Q. Do you believe that completing all the

11 research is necessary before any BMPs can be

12 implemented?

13 A. I think that would be the intelligent thing

14 to do.

15 Q. Do you believe there has not been

16 sufficient research at this particular time to begin

17 implementation of any particular BMPs?

18 A. Well, at some point you do have to

19 implement them. I think there's been sufficient

20 initial research to warrant further, you know,

21 looking at BMPs, to take the research further.

22 Q. Have you prepared any types of reports or

23 memos concerning your proposed testimony in this

24 case?

25 A. No, I haven't.

1 Q. Have you been asked to do that?

2 A. No, I haven't.

3 Q. Have you prepared any letters, summarizing

4 your opinions to anybody with regard to what you plan

5 to testify about in this case?

6 A. No. Not any.

7 Q. Okay. Other than the risk involved in

8 elevating water tables and the -- your opinion that

9 we should await further research to implement the

10 various BMPs, have you reached any opinions that you

11 intend to present at the final hearing other than

12 those two?

13 A. I mean I haven't given it that much thought

14 and I guess if I was asked to formulate an opinion on

15 a specific BMP, perhaps I could do that, but the

16 question you are asking me is if I have formulated

17 any others. At this point, no, I haven't.

18 Q. Have you been asked to formulate any

19 opinions concerning any particular BMPs and their

20 effects on crops or farming practices?

21 A. Have I been asked by whom?

22 Q. By anyone.

23 A. No, I haven't.

24 Q. No one from the Sugar Cane League has asked

25 you to formulate those opinions?

1 A. No. Not at this point.

2 Q. No one from the Sugar Cane League's legal

3 counsel has asked you do that?

4 A. No. Not at this point.

5 MR. NETTLETON: Are we here too early?

6 MR. STOTTS: That's one of the key issues

7 in this case, and has been all along, is when is

8 too early?

9 MR. NETTLETON: I'm a little concerned. As

10 far as I know, Dr. Dunckelman has never been

11 identified as a person who is not ready to give

12 whatever opinions he was planning to present at

13 final hearing. If he hasn't even been asked to

14 formulate any opinions, I'm a little concerned

15 what we're doing here. I don't want to waste

16 everybody's time. I mean I can obviously and

17 will go through the BMPs and everything that are

18 proposed. If he hasn't been asked to formulate

19 opinions I suppose while we're here now I'm

20 going to get him to formulate his opinions at

21 this deposition.

22 MR. STOTTS: Well, I suggest you go ahead

23 and proceed.

24 BY MR. NETTLETON:

25 Q. Dr. Dunckelman, did you review any

1 documents in order to prepare for your testimony here

2 today?

3 A. Yes.

4 Q. What documents did you review?

5 A. Well, all those that have been sent to you

6 and the ones that I brought here today. That would

7 be about it.

8 Q. What was the purpose of your review of

9 those documents?

10 A. The purpose of my review was to, you know,

11 to look at these documents again and to kind of look

12 at the research that's out there on BMPs and just to

13 kind of brush up.

14 Q. Who gathered the original documents that

15 were sent to me that you referred to?

16 A. I did and I think Richard Russell came and

17 he looked through our files and he brought them to

18 you, so myself and Russell.

19 Q. Specifically, what documents were you

20 looking for when you were gathering the documents,

21 what types of documents?

22 A. Mostly looking for documents that regarded

23 the BMP work that had been done by IFAS and documents

24 that deal with the crop in general and the effect of

25 those BMPs on sugar cane.

1 Q. And, to the best of your knowledge, have

2 all such documents been produced?

3 A. Yes.

4 Q. How long did you spend reviewing the

5 documents in order to prepare for your testimony

6 today?

7 A. I guess probably no more than three to five

8 days, working days total.

9 Q. What specifically were you doing, just

10 reading them?

11 A. Just reading them and looking at

12 conclusions, executive summaries of Forrest's work

13 and so forth.

14 Q. When you say three to five days, you were

15 spending the entire day?

16 A. Yeah. At some points I was and at some

17 points I wasn't. I'm just saying that's probably

18 about what it was. If you look at it on eight hour

19 days, probably three to five days, somewhere in that

20 range, total time spent reviewing.

21 Q. When did you start reviewing these

22 documents?

23 A. Oh, it's been, I guess, three, four weeks.

24 Q. Prior to that, had you at any time gone

25 through and reviewed any documents or materials

1 concerning BMPs for purposes of preparing any

2 opinions to testify in the case?

3 A. Well, I've reviewed a lot of documents, but

4 not specifically for purposes of testifying in this

5 case, just mostly out of interest.

6 Q. By the way, there aren't a whole lot of

7 those.

8 A. What's that?

9 Q. Documents concerning the implementation of

10 BMPs on muck soils for sugar cane.

11 Can you tell me what you base your opinion

12 with regard to the fact of your conclusion that

13 elevating water would potentially pose a risk to

14 sugar cane crop?

15 A. Yes. I base that on a limited amount of

16 research work that's been done on that specific

17 question.

18 Q. What research are you referring to?

19 A. Well, I submitted a paper by Deren that you

20 may want to look at; by Chris Deren, I think Snyder,

21 Steve Snyder and Porter also were authors on that

22 paper.

23 What they show in that paper is that when

24 you take a progeny of commercial sugar cane varieties

25 that we have here in Florida, place them under a

1 flooded condition and stress them, that, number 1,

2 you get greatly reduced yields, especially in the

3 ratoons; number 2, some of them die outright; number

4 3, some of them don't do that badly, but almost all

5 of them on the average undergo a pretty severe

6 decline in ratoon and I think that points to two

7 things. One, that there is some genetic variability

8 within the germ plasm for sugar cane in elevated

9 water tables and possibly to flooded conditions,

10 although these experiments were not done under

11 continually flooded conditions under a 12 month

12 period. Second, I think it points out that we've got

13 a lot of work to do before we can say we can grow a

14 crop, have it flooded intermittently during the

15 growing period and still expect to make the kind of

16 yields that we're making now.

17 Q. Can you describe to me what you mean by

18 ratoon? What is ratooning?

19 A. The ratoon is the regrowth crop.

20 Specifically, the definition will probably be most --

21 closest to sprout. Comes from the Spanish word,

22 "rotonyo" which means sprout. It's a regrowth, crops

23 that emanate from the stubbles or stubbles of the

24 cane that you leave in the ground after you cut and

25 remove the above ground portions of the stalk for the

1 mill for grinding or planting.

2 Q. How often is the cane normally regrown in

3 that fashion?

4 A. Well, it varies from farm to farm, but

5 about 30 percent of our crop in any year is generally

6 plant cane and about 70 percent of it is ratoon cane

7 and among that, those ratoons, probably about 50

8 percent of it first ratoon; another 25 percent of

9 that is second and sometimes third ratoon. Some

10 growers will grow four, but that's fairly rare. So

11 probably the average is somewhere around three, two

12 to three, in that range. Again, this varies from

13 farm to farm. Varies depending on soil type. Varies

14 depending on the harvest conditions. Varies

15 depending on pestilence. A lot of variables. The

16 decision when to plow out and rotate into another

17 crop or to plow out and replant into cane is based on

18 the past history of those fields, what their

19 production is then and also on the condition of them

20 at regrowth.

21 Q. Other than the research that you referred

22 to, the Deren paper, is there any other additional

23 research that you're relying on?

24 A. Well, first of all, there's probably not

25 enough research done in that area and I think we,

1 meaning the League and possibly IFAS, need to look at

2 it further. One problem with sugar cane varieties is

3 that from the time you make a cross until the time

4 you get varieties out of that set of seed, you are

5 looking at a ten year development period, so we've

6 looked at, at least initially, at the germ plasm that

7 we have among the better commercial varieties, making

8 crosses among those and looking at the response of

9 the progeny to elevated water tables, but I think

10 probably we need more research in that area.

11 Did I answer your question?

12 Q. Not directly. Let me ask it again.

13 Is there anything other than the paper you

14 referred to by Deren, is there any additional

15 research or studies that you're aware of that you

16 have relied on?

17 A. No. None that I'm aware and none that I

18 have relied on except for these two that I gave you,

19 you know, because, again, these two experiments,

20 these experiments here were done in Louisiana,

21 conducted on mineral soil and so that may not be

22 directly applicable to what happens on muck.

23 However, the effect, I think, that we were looking

24 at, that is elevated water table, is the same.

25 Because what that does is it affects the rooting of

1 the crop and the root zone of the crop. When you get

2 anaerobic conditions that crop is going to suffer a

3 reduced root value and probably reduced yield.

4 That's what we found in that experiment, when you

5 flooded or elevated the water table, you got severely

6 reduced yield, especially in the ratoon crops, the

7 regrowth crops.

8 MR. STOTTS: For the record, Dr. Dunckelman

9 is referring to exhibits marked 2 and 3.

10 BY MR. NETTLETON:

11 Q. When you talk about elevated water levels

12 what are you referring to? What level? What level

13 does it have to get to before the risk of damage

14 occurs?

15 A. Again, I think that's an unknown because

16 there hasn't been enough research done in that area.

17 Traditionally, growers have tried to maintain their

18 water table elevations at somewhere between two and

19 three feet. What the IFAS BMPs are calling for is

20 elevated water table in the 18 to 24" range. We're

21 not really positive if that's going to have a

22 negative or what degree of damage that is going to

23 incur. We do think that it's going to -- to increase

24 the risk of flooding under heavy rain conditions and

25 flooding is definitely detrimental, especially

1 prolonged flooding.

2 Q. Do you believe the research is sufficient

3 at this time for you to reach the conclusion that as

4 opposed to a risk that there will be actual damage to

5 crops through elevated water levels suggested by

6 IFAS?

7 A. Yeah. Well, I don't know about, you know,

8 suggested by IFAS. But, from my experience, from

9 having dealt with this crop for many years, I can

10 tell you that, you know, elevated water tables are

11 detrimental and that they can't have a positive

12 effect on the crop. I think their effect is going to

13 be overall negative. For instance, take germinating

14 cane. We know that when cane is germinating it's

15 very sensitive to flood and every year we're -- we've

16 got, you know, 30 percent of our crop in plant cane

17 which means roughly that we're planting about 30

18 percent of the crop every year anew. So, if you've

19 got these fields that are just germinating and you

20 get a flood, it's terrible. It's devastating. So

21 that's one factor that probably hasn't been

22 considered enough and that's one area that we're

23 looking at from the research standpoint now is the

24 effect of flooding on germination.

25 Q. What about the IFAS proposal that you've

1 referred to keeping the elevation to 18 to 24"? Is

2 there sufficient research at this time for you to

3 conclude that that will, in fact, have an effect

4 negative on the crops?

5 A. No. I don't think so. I don't think

6 there's enough research to say that, but I would say

7 that there's not enough research to say that it will

8 not have a negative impact either. What I'm saying

9 is there's not enough research. I mean there's a

10 hypothesis, but whether it's been rejected or

11 accepted, based on the data, there just isn't enough

12 data to say.

13 Q. Obviously, you just brought in what has

14 been marked Exhibit 2 and 3 and I haven't

15 had a chance read those, yet, but can you very

16 briefly describe for me, start with Exhibit 2 and

17 describe for me what, in that particular article,

18 supports what you've been saying or you're relying

19 upon?

20 A. If you look at the data table here that's

21 marked Table 1, which I'm going to pass to you, and

22 you look at the average three year cycle down at the

23 bottom, you are going to see that there was a

24 difference between drained and undrained plots and

25 that those differences are significant for yield of

1 cane. And I think if you read the conclusion or

2 summary section there, it probably would tell you

3 very succinctly what the --

4 MR. ROSENBERG: Do you have a second copy

5 of that?

6 THE WITNESS: No, I don't. I don't know if

7 we do or not.

8 (Thereupon, a recess was taken.)

9 BY MR. NETTLETON:

10 Q. Dr. Dunckelman, referring to Table 1 on

11 Exhibit 2, could you again explain to me how this

12 supports your opinion that elevated water levels will

13 have an adverse effect on crop yield?

14 A. Sure. Let me look at it. You want me to

15 specifically speak from the table, I take it.

16 Q. At this point, yes.

17 A. Let's see here. Spacings. Look at -- in

18 the bottom of Column 1.

19 Q. Uh huh.

20 A. What you have there, if you look at the top

21 of that, it says gross cane, tons per hectare, and

22 when you look at the average three year cycle on

23 those, you had 79.1 tons in the drained plots as

24 opposed to 71.6 tons in undrained plots. Now, that's

25 a three year crop average. Those are significantly

1 different. So what that's telling you is that the

2 tonnage has been lowered in the drained -- in the

3 undrained plots as opposed to the drained plots.

4 Again, this was not flooded conditions. These were

5 elevated water tables. The water tables were

6 elevated, but it was not flooded. So what that's

7 telling you is that there's an effect on the growth

8 of the crop and it's probably related to, you know,

9 anaerobic conditions in the root zone. Because sugar

10 cane is a relatively deep rooted crop or can be.

11 Q. What kind of elevated water levels are we

12 talking about here?

13 A. Well, I don't know. I'd have to go back

14 and look here. During these experiments, what I

15 recall, we had Penman chart recorders on each plot

16 and those were charted over a long period of time and

17 it says -- let's see. Let's see what it says about

18 drainage here. It's been a very long time since I've

19 looked at these and I need to look at them a minute

20 before I can answer your question.

21 Here it is. Says, "The sumps are --"

22 Q. Where are you?

23 A. I'm reading from the Materials and Methods

24 in the first paragraph. It reads, "The sumps were

25 constructed so as to maintain water tables at 1.2

1 meters in the drained treatment or near the soil

2 surface in the undrained treatment."

3 Q. 1.2 in drained treatment?

4 A. In the drained and near the soil surface in

5 the undrained. I don't know exactly how near near is

6 because I don't have the charts right now to tell you

7 that. It varied depending on rainfall and on, you

8 know, weather conditions.

9 Q. How does -- if you can convert metrics to

10 inches, what are we talking about as far as 1.2

11 meters?

12 A. Well, let's see. A meter is roughly three

13 feet, so we're talking about 2/10 of three feet. It

14 would be something like, you know, 3'5" or 6",

15 something like that.

16 Q. So about 41, 42"?

17 A. Yeah.

18 Q. Would you, from your memory of the actual

19 levels from the undrained plots, would that -- do you

20 believe that they were less than the 18 to 24" that

21 IFAS has recommended, when we say near the soil

22 surface?

23 A. Well, you know, I think, again, it varied a

24 great deal by the year, depending on how much

25 rainfall we had and that sort of thing, but during

1 the growing season I think they tended not to be as

2 close to the surface as they were during the winter

3 months when the crop had been removed and the ratoons

4 or stubble pieces were sitting in the ground. We

5 were able to push that water table up higher than

6 during the summer period when you had a lot -- a lot

7 higher evapotranspiration.

8 Q. Is there any reference in the publication

9 itself as to what ranges we're talking about as far

10 as the undrained plots?

11 A. Again, it's been awhile. Let me -- I'd

12 have to go back and look to see if those are

13 mentioned. There's a discussion on page 173 of

14 Exhibit 3 and maybe we ought to read through that to

15 give you an idea of how it was calculated.

16 Q. Which exhibit are you referring to?

17 A. I'm looking at Number 3, Yield Response of

18 Sugar Cane to Stalk Density and Subsurface Drainage

19 Treatments.

20 Q. Previously we were on Exhibit 2.

21 A. Both of these --

22 Q. Are these the same study?

23 A. These were done in the same study area.

24 I'm not positive. These probably are not the same

25 experiment. There were two different experiments.

1 Q. Okay.

2 A. These plots that we experimented here were

3 relatively large. They were an acre each. They were

4 expensive to build so we used them and experimented

5 with them a number of years. Cade Carter, who was

6 the lead on this is a hydrologist with USDA who is

7 still there. It says water level recorders were

8 installed midway between drains in each plot which I

9 told you. And then he says he took the data from the

10 recorders, he plotted them on graphs, which I also

11 told you. And it says after which the elevation and

12 duration of the water tables within 30 centimeters,

13 which is about 15" of soil surface were determined

14 for each plot. And the data were summed to provide a

15 term SEW30 which indicated numerically the potential

16 of the water table for damaging the cane roots. The

17 larger the number, the greater is the potential for

18 root damage. SEW30 excess water within 30

19 centimeters of the soil surface and I don't see a

20 table here where he actually shows those SEW30

21 numbers, although there is a water table. Yeah. He

22 does show them, actually. They're on page 176 and

23 there's also a plot at the bottom of the water table

24 elevation over Julian Days calendars, drained versus

25 undrained plots. So that SEW number in the drained

1 plots averaged 79, 74 and 29 in '80, '81, '82

2 respectively as opposed to 202, 484, 1,204 for the

3 undrained plots. So you can see that we were

4 maintaining a differential and we tried to maintain

5 that differential in water tables over all three of

6 those years to study the effect on the crop. We were

7 also looking at some other effects in these

8 experiments. The drainage was the main plot effect

9 that we were looking at.

10 Q. Okay. What was your role in these

11 experiments?

12 A. My role in those experiments was agronomist

13 and I was involved in planning the experiments,

14 taking a lot of the crop growth data in the

15 experiments, harvesting the tests, weighing the plots

16 and analyzing data points. I shared in doing that,

17 in analyzing data.

18 Q. Was any of these people that are listed as

19 authors the primary person responsible for preparing

20 the final analysis?

21 A. Yes. Cade Carter and Victor McDaniel was.

22 Victor now works at St. Johns Water Management

23 District. All of us, you know, were involved in

24 preparing these manuscripts since we're all named as

25 authors. We worked on them together. We reviewed

1 them and then sent them out for peer review within

2 and among our peers. That's generally -- that's the

3 way things work in the government. All the authors

4 review it, write it and then pass it out for review.

5 Q. Other than the experiments referred to in

6 Exhibits 2 and 3 have you personally been involved in

7 any research experiments with regard to the

8 effectiveness of BMPs to reduce phosphorus --

9 A. No.

10 Q. -- and/or their effects?

11 A. No, I have not.

12 Q. I'm referring to a pleading that was filed

13 by the Florida Sugar Cane League, et al. in the DOAH

14 proceedings 92-3038 consolidated, which is simply the

15 expert and fact witness disclosure. With regard to

16 Dr. Dunckelman it is indicated that the subject

17 matter was expected testimony as concerns BMPs and

18 SWIM Regulatory Program.

19 Is that your understanding of the subject

20 matter of your proposed testimony in this case?

21 A. I -- I tended to see myself more as an

22 expert in agronomy and the effect of BMPs on our

23 crop.

24 Q. Well, under the substance of expected

25 testimony, it is stated that you will be analyzing

1 the impacts of BMPs and the District regulatory

2 components on EAA farm practices.

3 Is that accurate to what you understand

4 you'll be testifying?

5 A. Yes. I think that's accurate.

6 Q. Are you familiar with the SWIM Regulatory

7 Program and the BMPs that are referred to in the

8 disclosure?

9 A. Yes.

10 MR. NETTLETON: Mark that.

11 (The document was marked Exb. No. 4.)

12 BY MR. NETTLETON:

13 Q. Dr. Dunckelman, we just had marked as

14 Exhibit Number 4 an excerpt from the Surface Water

15 Improvement and Management Plan for the Everglades,

16 the planning document dated March 13, 1992 and

17 specifically I believe it contains the cover as well

18 as pages 110 through 117. Is that accurate?

19 A. Yes.

20 Q. Beginning on page 110 under the heading EAA

21 Regulatory Program, is that the regulatory program

22 that we've been discussing as far as what your

23 proposed testimony concerns?

24 A. Yes.

25 Q. On page 113 of that document the second

1 paragraph refers to a five year research project by

2 Izuno and Bottcher 1991. Are you familiar with that

3 project?

4 A. Yes, I am.

5 Q. Are the BMPs that are listed and described

6 on pages 113 and 114, enumerated there 1 through 9,

7 are those developed or described out of the Izuno and

8 Bottcher report?

9 A. Yes, they are.

10 Q. Let's talk about each of these for a little

11 bit. First, the first one refers to calibrated soil

12 test recommendations and indicates that that could

13 reduce phosphorous losses from 0 to 25 and 0 to 10

14 percent for vegetables and sugar cane respectively.

15 First of all, can you tell me what your

16 understanding is of how this BMP would work?

17 A. Calibrated soil tests refers to relating or

18 correlating the analysis of the soil for nutrients to

19 the yield and production of the crop to get the

20 maximum yield with the minimum amount of fertilizer

21 needed to get there. In other words, you want to

22 prevent luxurious fertilization.

23 Q. Do you agree with the conclusion of Izuno?

24 Let me back up here a second. Izuno and

25 Bottcher, are you familiar with where they are

1 located?

2 A. Yes.

3 Q. And who they're associated with?

4 A. Yes, I am.

5 Q. What is that?

6 A. Forrest Izuno is a hydrologist. He's

7 located at Belle Glade Everglades Research and

8 Education Center in Belle Glade, Florida and Bill

9 Bottcher is an agricultural engineer who's located at

10 University of Florida, Gainesville.

11 Q. Is this report essentially the IFAS report

12 that we've referred to earlier?

13 A. Yes, it is. I think it is.

14 Q. Do you agree with the conclusion set forth

15 in that IFAS report regarding the potential

16 reductions in phosphorus from 0 to 25 and 0 to 10

17 percent that are stated in there?

18 A. Would you repeat that question, please?

19 I'm not quite sure I understand what you are asking

20 me.

21 Q. Well, do you agree with the conclusions

22 that were reached by Izuno and Bottcher in that IFAS

23 report that phosphorus reductions -- excuse me --

24 phosphorus losses or phosphorus leaving the EAA can

25 be reduced by 0 to 25 percent and 0 to 10 percent for

1 sugar cane -- vegetables and sugar cane respectively

2 through the implementation of this BMP?

3 A. That's the low end of their range that they

4 gave. What they said, the way I interpreted the data

5 and as I recall their conclusions, it was that they

6 could see a 20 to 60 percent reduction in phosphorus

7 leaving the farms from the EAA by implementation of

8 their BMPs.

9 Q. You are talking about all of the BMPs?

10 A. Well, you can't implement them all at once.

11 At least that's what their research says. You have

12 to choose a set. Not all of them are always

13 compatible. Some of them are exclusive, mutually

14 exclusive.

15 Q. Okay.

16 A. But given an optimum set of BMPs, what they

17 said is you could get 20 to 60 percent reduction in

18 phosphorus. What you are asking me is: Do I agree

19 with the low end of that? I would say, yes, I do.

20 Q. Well, maybe I misstated my question. I

21 think I probably did.

22 Before we get to the 20 to 60 percent, the

23 percentages that are reflected in these various BMPs,

24 those are on a field or farm basis, is that correct,

25 on the BMPs listed under pages 113 to 114?

1 A. I don't think they give what basis they're

2 on. They're saying that in general these BMPs, if

3 applied properly, can result in -- you know, for

4 instance, when you look at calibrated soil tests,

5 recommendations could reduce P losses from 0 to 10

6 percent for sugar cane. It doesn't say whether that

7 means on small plots or on fields, but I'm --

8 everyone has extrapolated this to mean for the whole

9 EAA for farms out there.

10 Q. Well, do you do agree with that conclusion

11 that they have --

12 A. Yes. Absolutely.

13 Q. -- they have reached?

14 A. I think Forrest and Del, as any good

15 scientist would, they are being very careful about

16 the conclusions they make or have made based on the

17 amount of work that they have done and that's why

18 it's given in ranges. That's what they feel is the

19 best reflection of the research and the data that

20 they have now is that conclusion. It could be more.

21 It could be less. That's why it's given as a range.

22 Q. Well, it can't be less than 0, can it?

23 A. Well, I should hope not. I mean it could

24 be less than 10. It could be more than 10.

25 Q. Moving to the second BMP that's listed on

1 here, banding fertilizer for vegetable production

2 instead of broadcasting it.

3 Can you describe how that BMP works?

4 A. Essentially banding fertilizing involves

5 placing the fertilizer below either the seed or the

6 set, meaning the vegetative or transplant -- seedling

7 transplant that you put out in the field. The reason

8 you want to do that is to locate the fertilizer as

9 close to the root zone of the plant for ready uptake

10 as you can. If you can accomplish that what you

11 effectively do is you reduce the need of having to

12 apply more fertilizer because of a dilution effect

13 that you get by spreading that fertilizer over a

14 larger area, which is unavailable to the plant until

15 it grows roots into that particular zone to utilize

16 those nutrients. So if you put it where it's readily

17 available to the plant, meaning right beneath where

18 the plant is going to be rooting or right off to the

19 sides, in either one or two bands of where the plant

20 root zone is, then you can reduce the amount of

21 fertilizer that you put out in the field and you can

22 still provide all the nutrients that that plant needs

23 for maximum yield. And this is something that's --

24 that's working very well for the vegetable interests

25 right now, to my knowledge. They're talking about

1 reductions in 50 percent of their phosphorus

2 application rate.

3 Q. Does this apply to cane production?

4 A. Yes, it does, to an extent. Not as much to

5 cane production as it does to vegetable production,

6 but is a practice that's being used in sugar cane

7 production and probably will become more used in the

8 future because it's a -- it's a good practice and it

9 does reduce the amount of fertilizer that you need to

10 apply.

11 For instance, in the majority of our plant

12 cane now, I would suspect that -- that most of the

13 fertilizer is being banded, meaning as the field is

14 opened for planting, the fertilizer is placed in that

15 open furrow and then the seed is placed on top of

16 that and then closed back and covered. In the ratoon

17 crops it's being done similarly, although the

18 fertilizer can't be applied subsurface. It's

19 dribbled over the drill or planted row of cane. For

20 many years the standard practice in the sugar cane

21 industry was to broadcast fertilizer, meaning you

22 went in with some sort of sling or drop spreader,

23 dropped the fertilizer over the entire area of the

24 field and then cut it in using a disk and then open

25 and plant.

1 Q. Do you agree with the conclusion that IFAS

2 reached by moving to the banding versus broadcasting

3 fertilizer that that could reduce phosphorus losses

4 from 10 to 40 percent?

5 A. Yes.

6 Q. The next listed BMP refers to prevention of

7 fertilizer spills and the direct spreading of

8 fertilizer into drainage ditches.

9 Just describe what is being discussed

10 there.

11 A. What's being discussed there mostly is

12 modification through the machinery that we use to

13 apply fertilizer and more care being taken in the

14 transfer of fertilizer from the transport vehicles to

15 the spreaders so that we don't spill fertilizer into

16 any body of water. Naturally, a small amount of

17 fertilizer in a ditch can make a big difference in

18 concentration of phosphorus when you are talking

19 about such low levels.

20 Q. Do you agree with the IFAS conclusion there

21 that implementing that could possibly reduce

22 phosphorus by 0 to 15 percent?

23 A. Yes, I do.

24 Q. Moving to the fourth BMP, it refers to

25 minimizing water table fluctuations.

1 A. Uh huh.

2 Q. Can you describe to me how that BMP works?

3 A. Well, essentially, what is involved here is

4 optimum maintenance of a stable water table as

5 constant to a -- some established point as you can

6 without fluctuating up or down from that point either

7 way.

8 Q. Can you describe to me how that affects or

9 how that reduces phosphorus losses by maintaining the

10 stability of the water level?

11 A. Well, I would think that it probably works

12 in more than one way. Number 1, by choosing an

13 optimum water table and maintaining that water table,

14 you prevent oxidation of the soil profile from

15 dropping it too low and you also prevent leaching of

16 phosphorus into the water table by pushing it up too

17 high in the oxidized zone where you are growing the

18 crop. So if you can set it and maintain it at that

19 point, you eliminate a lot of phosphorus movement.

20 MR. ROSENBERG: Could I ask you to have him

21 define leaching.

22 BY MR. NETTLETON:

23 Q. How do you define leaching?

24 A. Leaching means movement through the soil

25 profile of minerals by water movement. They are

1 carried with water movement downward.

2 Q. Does this particular BMP raise any concerns

3 concerning the previous opinion you expressed about

4 elevated water levels possibly having adverse effects

5 on crops?

6 A. Yes, it does.

7 Q. How does it affect that or how does that

8 come into play?

9 A. Well, again, it relates mostly to climatic

10 events, especially heavy rainfalls because in the

11 past it's probably been more of a common practice

12 when you anticipate heavy rain, to pump off and get

13 the water table lower so that as it rains, you have

14 that room to fill back up. But now what they're

15 saying is that you're going to install a pump BMP, a

16 water management BMP that's going to disallow you to

17 pump down in anticipation of a rain or that you're

18 going to have to pump down on some more stringent

19 schedule than just pumping out. What that's going to

20 do is it's going to increase your risk of flooding

21 during heavy rainfall. And vegetable growers are

22 much more concerned with that particular issue than

23 sugar cane growers are because vegetables are very,

24 very sensitive to flooded conditions. You are

25 talking about death within a few hours under flooded

1 conditions for a crop like lettuce where sugar cane

2 you've got a little more leeway. So we think that

3 this is probably the heart of the BMPs for sugar

4 cane.

5 Q. Do you think this would be the most

6 effective BMP to reduce phosphorus discharges, is

7 that what you are saying, for sugar cane?

8 A. Well, I think probably among the IFAS BMPs,

9 it's again the heart of the effort to reduce

10 phosphorus through a BMP program, but any BMP program

11 is going to involve more than just a pump BMP. It

12 has to be a fully integrated program using as many

13 methods and means you have available to control

14 phosphorus.

15 Q. Do you agree with the IFAS conclusion that

16 implementation of this BMP could reduce phosphorus

17 losses from 0 to 50 percent?

18 A. Yes.

19 Q. The next BMP, number 5, refers to retention

20 of on-farm drainage.

21 A. Uh huh.

22 Q. Can you describe how that BMP would work?

23 A. Yes. Now, when -- I think when we talk

24 about this BMP and we talk about retention, we're not

25 talking about building retention ponds. What we're

1 talking about here is on-farm movement and management

2 of water on fallow grounds or on aquatic crops. This

3 has a potential for reducing phosphorus because it

4 reduces off farm pumping. Again, this is one that's

5 probably easily and well integrated with the pump

6 BMP.

7 Q. Do you agree with the IFAS conclusion that

8 it could reduce phosphorus losses from 15 to 60

9 percent?

10 A. Yes.

11 Q. Moving to page 114 in item number 6, the

12 sixth listed BMP refers to retention of vegetables

13 field drainage water in sugar cane or fallow lands.

14 Could you describe to me what that BMP

15 involves?

16 A. Again, very similar to what we were just

17 talking about. More or less the same BMP.

18 Q. Well, it may be the way I'm reading these,

19 they appear to be similar in the sense that you're

20 moving water around.

21 A. You are moving water and you are holding

22 water and in number 5 what he's talking about

23 specifically is holding more water in canals, the way

24 I read it, and moving from field to field.

25 Q. Okay.

1 A. I guess, you know, it means moving

2 irrigation water around and it means growing aquatic

3 crops. These water management BMPs that Forrest has

4 put together with Del, I think they have really given

5 it quite a lot of thought and they have a good idea

6 of how to integrate them on a farm. And there are a

7 lot of different sets that could possibly be used and

8 fitted together depending on a particular type of

9 farm, what the crop and pattern was, what the soil

10 type was, how deep the muck is, so forth.

11 Q. Okay. Well, with regard to number 6, which

12 seems to be more directed toward using the water on --

13 either moving vegetable water into sugar cane fields

14 or to fallow lands --

15 A. Right.

16 Q. -- the conclusion reached there by IFAS was

17 it could reduce phosphorus losses from 20 to 90

18 percent.

19 Do you agree with that?

20 A. Yeah. I mean I have no reason to doubt

21 their work. I've read it and I think it's good

22 research and I think their numbers are good and I

23 believe that they developed these ranges using their

24 best scientific effort and judgment.

25 Q. Let's move to the seventh one, which refers

1 to aquatic cover crops.

2 A. Uh huh.

3 Q. Can you describe for me what's meant by

4 aquatic cover crops being used as a BMP?

5 A. Well, what they're mostly referring to here

6 is rice.

7 Q. Okay. And how would that work? Rice would

8 be planted as opposed to just leaving a field fallow

9 or something?

10 A. Correct.

11 Q. Do you agree with the IFAS conclusion that

12 the use of an aquatic cover crop could reduce

13 phosphorus losses from 5 to 20 percent?

14 A. Yes.

15 Q. Any crops other than rice that might be

16 used?

17 A. At this point, you know, I don't think

18 there are any that the growers are interested in

19 growing. Whether there are some that may or may not

20 fit, I can't say one way or another. There may be.

21 There may not.

22 Q. Is -- would the planting of rice result in

23 economic recovery for the farmers as opposed to

24 leaving the fields fallow?

25 A. Generally, rice is viewed as a break even

1 proposition. There's some benefits to it in land

2 preparation and so forth, but other than that, it's

3 break even, rice is. It's not a high profit crop,

4 from my understanding.

5 Q. All right. Number 8 here refers to on-farm

6 retention ponds utilized to store excess rainfall.

7 Can you just describe to me how that BMP

8 would be implemented and work?

9 A. Basically what they're saying here is you

10 either levee up a area of the farm and pump drainage

11 water into it and hold it there or you -- that you

12 actually build some sort of a retainment or retention

13 area to hold water that you would otherwise pump off

14 farm.

15 Q. Does this BMP, is this specifically related

16 to rainfall, though, as opposed to any other water

17 on-farm?

18 A. Yes. I mean the retention pond would have

19 to be designed to, you know, to hold drainage water

20 from rainfall events.

21 Q. If this BMP were implemented wouldn't it

22 eliminate the potential problem for flooding under

23 the previous water management ones that you're

24 concerned with?

25 A. I think that would have to do with the size

1 of the retention pond.

2 Q. Would --

3 A. Which I think is a problem with this one.

4 Q. The reference here indicates that IFAS

5 found that such ponds would require about 5 to 10

6 percent of the individual farm -- individual's farm

7 land.

8 Do you agree with that assessment? Do you

9 think that's high, low?

10 A. I think that's fairly accurate. Could be

11 low. Again, I think it depends on to what extent you

12 want to design it.

13 Q. What do you mean by that?

14 A. I mean, you can design it small enough to

15 hold the majority of the drainage water or you can

16 design it big enough to hold all the drainage water

17 depending on the climate history, so there's

18 definitely a range of how big you would have to build

19 it to do -- you know, to fit what you're trying to

20 accomplish.

21 Q. Are you familiar -- other than the IFAS

22 report and study, are you familiar with any other

23 research concerning construction of retention ponds

24 for this purpose?

25 A. Yes.

1 Q. Can you describe what you're familiar with?

2 A. Well, I'm familiar with work that we've

3 done within the League, looked at that specific

4 issue.

5 Q. What have you done?

6 A. I haven't personally done anything.

7 Q. What has the League done?

8 A. The League has used various engineering

9 firms to look at that issue.

10 Q. Who have they used?

11 A. Hutchon Engineers, H-u-t-c-h-o-n, (sic) I

12 believe.

13 Q. Anybody else?

14 A. Not that I know of.

15 Q. Okay. When did Hutcheon Engineers look at

16 this problem?

17 A. It's been within the last two years at

18 least, I know, they have looked at it.

19 Q. Were you involved in that at all?

20 A. No, I was not.

21 Q. Did they prepare any reports that you've

22 seen?

23 A. Yes.

24 Q. Did they reach any conclusions?

25 A. You know, I don't -- I didn't keep those

1 reports and -- but, of course, there were some

2 conclusions reached.

3 Q. Do you recall what their conclusions were?

4 MR. STOTTS: Dr. Dunckelman, I would

5 caution you that if those reports were prepared

6 at the direction of counsel --

7 THE WITNESS: They were.

8 MR. STOTTS: -- then they are attorney work

9 product.

10 THE WITNESS: Uh huh.

11 MR. NETTLETON: I mean if he's reviewed

12 them and he's testifying about BMPs and this is

13 one of the BMPs and it's specifically relevant

14 to his testimony, I think it can't be considered

15 work product.

16 MR. STOTTS: He hasn't stated he's relying

17 on any of those documents.

18 MR. ROSENBERG: He didn't say they were

19 prepared by counsel. He said it was the

20 League's work. That doesn't necessarily mean it

21 was counsel's work. It was the League's work.

22 MR. STOTTS: My caution was if they were

23 prepared at the direction of counsel. I'm not

24 putting any words in his mouth.

25 THE WITNESS: Those documents were prepared

1 under direction of counsel.

2 BY MR. NETTLETON:

3 Q. Which counsel? What attorney directed

4 those to be prepared?

5 A. Philip Parsons.

6 Q. Do you know why they were being prepared?

7 A. They were being prepared to study that

8 issue.

9 Q. Was it for purposes of litigation or just

10 for scientific determinations?

11 A. That I'm not sure of.

12 Q. I would ask you again. Do you recall what

13 the conclusions were that were reached by Hutcheon

14 Engineers?

15 MR. STOTTS: You can answer whether you do

16 recall, but as to the substance of the

17 conclusions, those documents are obviously work

18 product.

19 THE WITNESS: I recall some of the general

20 conclusions.

21 BY MR. NETTLETON:

22 Q. Did the conclusions concern the sizing of

23 the retention ponds that would be necessary for

24 implementation of this type of a BMP?

25 A. Yes.

1 Q. Well, I believe you've previously testified

2 that sizing is a problem. Was that in part based

3 upon what you saw as far as the conclusions reached

4 by Hutcheon Engineers?

5 A. Yes.

6 Q. Okay. Can you tell me what conclusions

7 they reached?

8 MR. STOTTS: With respect to the questions --

9 line of questioning regarding the sizing, if you

10 have relied on that in part of your conclusions

11 here, you can testify about that.

12 THE WITNESS: As I recall, Hutcheon's

13 conclusions were, you know, that in general to

14 retain the amount of water that would give you

15 the retention capacity for all but the highest

16 possible flows. Under extreme conditions of

17 heavy rainfall, you would have to design ponds

18 that were somewhere on the order of 10 to 15

19 percent of the total land area of the farm.

20 BY MR. NETTLETON:

21 Q. How deep would these retention ponds need

22 to be or could they be?

23 A. I don't recall those numbers specifically.

24 Q. I mean it would seem to me that if the

25 deeper the pond can be, the less area it has to cover

1 on the surface. Wouldn't that be correct?

2 A. Sounds right to me.

3 Q. Okay. You don't recall what design

4 parameters were considered by Hutcheon Engineers?

5 A. No. Not specifically.

6 Q. Was there any consideration given to above

7 ground retention ponds in the sense of actually

8 building up the sides?

9 A. Yes.

10 Q. Do you recall what the conclusion was with

11 regard to if that would work?

12 A. No. Not specifically.

13 Q. Well, do you agree with the IFAS conclusion

14 that assuming this BMP were implemented and on-farm

15 retention ponds were utilized to store excess

16 rainfall, this would reduce phosphorus losses from 10

17 to 60 percent?

18 A. I have no reason to disagree with that.

19 Q. And you would agree that a sugar cane farm

20 would require a smaller pond than a vegetable farm?

21 A. I haven't given that any thought.

22 Q. In light of your previous testimony that

23 the sugar cane crop can withstand higher elevations

24 of water or flooding for longer periods, would that

25 appear to be an accurate assessment?

1 A. Well, I don't know if that's accurate or

2 not.

3 Q. Moving to item number 9, it refers to

4 coordinated farm cropping patterns. Again, this does

5 not appear to be a separate BMP.

6 Is that your understanding in the sense

7 that it would have an effect on reducing phosphorus

8 in and of itself?

9 A. Well, it could.

10 Q. Okay. Tell me how you think that would

11 occur.

12 A. Well, some farmers grow more than one crop.

13 Q. Uh huh.

14 A. For instance, a farmer may grow vegetables,

15 cane, rice and, depending on how he chooses to

16 coordinate the planting and the management and

17 placements of those crops on his particular parcels

18 of land, could have a big effect on his ability to

19 implement some of the other BMPs and especially the

20 ability to move water around and store water on rice

21 or fallow ground. The ability to move water around

22 is related to the distance you have to move it and so

23 forth.

24 Q. That refers back to the some of the other

25 BMPs discussed?

1 A. I think, again, Forrest and Bill gave a lot

2 of thought to an integrated set of BMPs. They're not

3 necessarily stand alone single implementation BMPs.

4 Q. Then it's your understanding that this

5 ninth listed item as far as coordinated farm cropping

6 pattern is there to -- that is a BMP that should be

7 implemented in order to take advantage of some of the

8 other BMPs, is that correct?

9 A. It's a BMP that you could implement to help

10 you take advantage of some of the other BMPs.

11 Whether you should or not, I don't know. It could

12 be.

13 Q. On page 114 two paragraphs below item

14 number 9 it indicates that Izuno and Bottcher

15 estimated that the overall range of phosphorus

16 reduction that could be accomplished for the EAA

17 basin was between 20 and 60 percent.

18 Do you agree with that assessment?

19 A. That's their opinion and I am really not,

20 you know -- I would say that the final verdict is not

21 in yet, but I have no strong reasons to doubt that

22 it's somewhere within that range.

23 Q. Are you familiar with what the goal of the

24 regulatory program is as far as phosphorus reduction?

25 A. To the best of my understanding, it's a

1 reduction of 25 percent of phosphorus coming out of

2 the EAA basin.

3 Q. Do you agree with the conclusion that

4 implementation of these BMPs would reasonably result

5 in a reduction of at least 25 percent of phosphorus

6 leaving the EAA?

7 A. I think if -- you know, if the BMPs were

8 implemented across the entire EAA that could probably

9 easily be accomplished.

10 Q. Do you think it could accomplish more than

11 a 25 percent reduction?

12 A. I think that's possible and I don't

13 necessarily think that these are the only BMPs that

14 are possible in the future. Obviously, scientists

15 are going to be looking at this and there could be

16 development for new and better and more BMPs.

17 Q. But just so -- I understand that.

18 But just dealing with these specific BMPs

19 that are identified in the regulatory program set

20 forth in the SWIM Plan, just by implementing those,

21 assuming those BMPs were implemented, would you agree

22 that phosphorus reduction could be reduced by at

23 least 25 percent?

24 A. They have never been implemented so I'm not

25 sure. I don't think anybody is.

1 Q. Based upon the research, do you think

2 that's a reasonable conclusion?

3 MR. STOTTS: Asked and answered.

4 BY MR. NETTLETON:

5 Q. You can still answer it.

6 A. I'm sorry. I didn't hear what you said.

7 MR. NETTLETON: It's an objection.

8 MR. STOTTS: I'm objecting because you've

9 asked the question and he's answered it. He

10 said he was he wasn't sure.

11 BY MR. NETTLETON:

12 Q. Was that your answer?

13 A. Yes.

14 Q. Page 115, under the heading, Rulemaking

15 Required, it's stated that the program here will be

16 implemented by rules to be developed and adopted by

17 the District.

18 Are you familiar with the rules that have

19 been adopted implementing this regulatory program?

20 A. I have looked at 40E-63.

21 Q. Okay.

22 MR. NETTLETON: Mark that.

23 (The document was marked Exb. No. 5.)

24 BY MR. NETTLETON:

25 Q. Dr. Bottcher, (sic) I marked as Exhibit

1 Number 5 is a copy of Chapter 40E-63. Is this the

2 rules that you've indicated that you have looked at?

3 A. Yes.

4 Q. Is it your understanding that these are the

5 rules that implement the regulatory program that

6 we've been discussing as set forth in the SWIM Plan?

7 A. Yes.

8 Q. Can you describe to me your understanding

9 of how these rules implement the regulatory program?

10 A. Well, basically, it requires that all the

11 growers have had to reapply for their water use

12 permits; they have had to implement a BMP plan;

13 submit a BMP plan for their farm as part of that

14 permit and they're going to be required to install

15 phosphorus and flow -- phosphorus concentration and

16 flow monitoring equipment on their pumping stations.

17 Q. Referring specifically to section

18 40E-63.136, about two or three pages in at the bottom

19 of the page --

20 A. Okay.

21 Q. -- and under that, subpart 1(c) which is

22 the beginning of the next page --

23 A. Okay.

24 Q. -- is it your understanding that this is a

25 section that incorporates the BMPs that we've been

1 discussing that are reflected in the SWIM Plan?

2 A. Yes.

3 Q. Is it your understanding that under this

4 rule that those BMPs must be implemented on an

5 individual farm basis?

6 A. You know, I haven't had to deal with that

7 because I'm not a farmer, but I know they have to

8 submit a plan for BMPs. Exactly what particular set

9 of those BMPs that they're required to put in place,

10 that's partly a decision for the -- whoever approves

11 the permit at the District was my understanding.

12 Q. All right. Well, is it your understanding,

13 then, that BMPs that we discussed, the eight or nine

14 of them that were listed in the SWIM Plan, that those

15 are not all required to be implemented by every

16 farmer in the EAA?

17 A. That's correct.

18 Q. Do you also understand that the Rule 40E-63

19 provides for alternatives to BMPs to be considered?

20 A. Yes.

21 Q. I refer you to specifically 40E-63.101 --

22 A. Okay.

23 Q. -- subpart 4 --

24 A. Subpart 4.

25 Q. -- second page.

1 A. Okay.

2 Q. Is that where your understanding comes

3 from?

4 A. May I read this?

5 Q. Sure. Sure.

6 A. Yes.

7 Q. And I'd like to refer you to section

8 40E-63.145 subpart 5 which is on page 636-47.

9 A. 636 -- okay.

10 Q. Subpart 5 beginning at the end of the first

11 column.

12 A. Okay.

13 Q. First of all, have you read this provision

14 before? Are you familiar with it?

15 A. Well, I've -- you know, I've perused this

16 rule and scanned it. I probably haven't read it as

17 thoroughly as I should have, but if you'll just allow

18 me to read this.

19 Q. Sure.

20 A. Would you repeat the question, please.

21 Q. My question is: Was -- first of all, had

22 you reviewed this provision before and are you

23 familiar with it?

24 A. You know, I'm not that familiar with it.

25 Q. Okay. I am not going to ask you any

1 questions about it.

2 (The document was marked Exb. No. 6.)

3 BY MR. NETTLETON:

4 Q. We've marked as Exhibit Number 6 a document

5 entitled, Draft Technical Document in support of

6 Chapter 40E-63 dated March 3, 1992.

7 Are you familiar with this document?

8 A. This is the supporting document of the SWIM

9 Plan, is it not?

10 Q. I believe it refers to Chapter 40E-63.

11 A. I don't specifically ever recall having

12 read this document.

13 Q. Okay. Well, let me refer you specifically

14 to pages 57 through 59.

15 A. Okay.

16 Q. And just ask you whether this discussion

17 contained in here -- and you can take a chance and

18 look through it -- whether it is your understanding,

19 after you have a chance review it, this is the same

20 discussion which essentially appears in the SWIM Plan

21 and refers to the IFAS report that we've previously

22 been referring to?

23 A. It appears to be based on Forrest and Del's

24 work and the references are to them, so, yeah, I

25 would assume it's from them.

1 Q. Okay. The BMPs listed on page 57 and 58,

2 those are the same BMPs that we discussed earlier?

3 A. They appear to be, yes.

4 Q. I'm not going to have this marked. I think

5 you brought a set here today, but I want to show you

6 a document that's entitled, Final Report: The

7 Effects of On-farm Agricultural Practices in the

8 Organic Soils of the EAA on Nitrogen and Phosphorous

9 Transport. Subtitle, Screening BMPs for Phosphorus

10 Loading and Concentration Reductions. Submitted by

11 F.T. Izuno and A.B. Bottcher, a number of

12 contributing authorities. It's dated August 30,

13 1991.

14 Have you seen that document before?

15 A. Yes, I have.

16 Q. Is that the IFAS report that we've been

17 referring to?

18 A. Yes.

19 Q. Is that the IFAS report that's referred to

20 in the SWIM Plan and in the technical document in

21 support of the rule that we just looked at?

22 A. Yes, it is.

23 Q. Are you familiar with the -- what is called

24 the Early Baseline Option under Rule 40E-63?

25 A. You know, I've heard that term, but to be

1 able to sit here and describe exactly to you what it

2 is, I don't think I can do that.

3 Q. Okay. Have you been involved in reviewing,

4 preparing or looking over any permit applications --

5 A. No. I have not been involved in that.

6 Q. Let me finish my question.

7 -- with regard to any of the EAA farmers?

8 A. No, I have not.

9 Q. Have you, not having reviewed them, but

10 have you seen any permit applications that have been

11 submitted by any of the EAA agricultural interests

12 under the Rule 40E-63?

13 A. No. I have not seen any of the permits or

14 permit applications as you referred to them.

15 Q. Have such permit applications been

16 discussed with you as far as the applications

17 concerning BMPs that are being set forth in those

18 permit applications?

19 A. The only discussion I've ever participated

20 in about permit applications would be where the

21 District sent representatives to the Everglades to

22 speak with the growers about those permits and about

23 filling them out and I believe the meeting that I

24 attended it was Dick Rogers and Donovan, Bill Donovan

25 were the representatives where we discussed that

1 filling out of permits.

2 Q. Okay. Were you present at that meeting?

3 A. I went just for general information to hear

4 what was being asked of farmers.

5 Q. Are you generally familiar with what BMP

6 plans have been submitted by, say, the U.S. Sugar

7 Corporation?

8 A. No, I'm not.

9 Q. What about any of the other agricultural

10 interests?

11 A. No, I am not.

12 Q. Are you familiar with any of the monitoring

13 plans that may have been submitted?

14 A. No, I am not.

15 MR. NETTLETON: This may be a good time to

16 break for lunch.

17 MR. STOTTS: Is that all right for you?

18 THE WITNESS: It's fine with me. I don't

19 care either way. I can continue or we can

20 break, whatever you would like.

21 MR. NETTLETON: I'd prefer to break.

22 MR. STOTTS: All right.

23 (Thereupon, a recess was taken.)

1 Division of Administrative Hearings

2 Department of Administration, State of Florida

3 SUGAR CANE GROWERS COOPERATIVE )

of FLORIDA; ROTH FARMS, INC.; and, )

4 WEDGEWORTH FARMS, INC., )

Petitioners, )

5 V ) DOAH

SOUTH FLORIDA WATER MANAGEMENT ) Case 92-3038

6 DISTRICT, an agency of the State )

of Florida; et al., )

7 Respondents. )

FLORIDA SUGAR CANE LEAGUE, INC.; )

8 UNITED STATES SUGAR CORPORATION; )

and NEW HOPE SOUTH, INC., )

9 Petitioners, )

V ) DOAH

10 SOUTH FLORIDA WATER MANAGEMENT ) Case 92-3039

DISTRICT, an agency of the State )

11 of Florida; et al., )

Respondents. )

12 FLORIDA FRUIT and VEGETABLE )

ASSOCIATION; LEWIS POPE FARMS; )

13 W.E. SCHLECHTER & SONS, INC., )

and HUNDLEY FARMS, INC., )

14 Petitioners, )

V ) DOAH

15 SOUTH FLORIDA WATER MANAGEMENT ) Case 92-3040

DISTRICT, an agency of the State )

16 of Florida; et al., )

Respondents. )

Volume II

18 Deposition of John Dunckelman, Ph.D.

19 Taken before April Y. Sapp, Court Reporter

and Notary Public in and for the State of Florida at

20 large, pursuant to notice of taking deposition filed

by the Petitioners in the above cause.

21 - - -

Wednesday January 20, 1993

22 319 Clematis Street, 5th Floor

West Palm Beach, Florida 33401

23 1:12 - 5:45 p.m.

- - -

1 APPEARANCES:

On behalf of the Petitioners Florida Sugar

3 Cane League, Inc., United State Sugar Corp.,

and New South Hope, Inc.:

4 Peeples, Earl & Blank, P.A.

One Biscayne Tower, Suite 3636

5 Two South Biscayne Boulevard

Miami, Florida 33131

6 By: DENNIS M. STOTTS, ESQUIRE

7 On behalf of the Respondent SFWMD:

Popham, Haik, Schnobrich, Ltd.

8 4000 International Place

100 S.E. Second Street

9 Miami, Florida 33131

By: PAUL NETTLETON, ESQUIRE

On behalf of the Intervenor United States of America:

11 Assistant United States Attorney

Southern District of Florida

12 155 South Miami Avenue, Suite 627

Miami, Florida 33130-1693

13 By: ROBERT ROSENBERG, ESQUIRE

- - -

1 - - -

2 I N D E X

3 - - -

5 WITNESS: DIRECT CROSS REDIRECT RECROSS

6 John Dunckelman, Ph.D.

BY MR. NETTLETON 74

1 - - -

2 E X H I B I T S

3 - - -

5 NUMBER PAGE

6 EXB. NO. 7 95

7 BMPs for the EAA by Bottcher

8 EXB. NO. 8 99

9 4-23-92 John Dunckelman note head

10 EXB. NO. 9 101

11 Fla. Sugar Cane League: A Strategy to

12 Revitalize the Everglades and Preserve

13 Farming

14 EXB. NO. 10 168

15 IFAS letter 7-24-90

16 EXB. NO. 11 171

17 IFAS letter 7-25-91

18 EXB. NO. 12 172

19 Procedural Guide July 1992 BMPs in the EAA

20 EXB. NO. 13 191

21 IFAS BMP meeting 2-27-92

22 EXB. NO. 14 199

23 Letter from Schoech 5-12-92

24 EXB. NO. 15 201

25 Letter from Schoech 5-19-92

1 - - -

2 E X H I B I T S

3 - - -

4 NUMBER PAGE

6 EXB. NO. 16 206

7 Status Report Re: BMPs July 1992

8 EXB. NO. 17 208

9 EPD/BMP Tech. Comm. 10-16-92

10 notes and report

11 EXB. NO. 18 217

12 Handwritten notes

13 EXB. NO. 19 227

14 Handwritten notes 4-22-92

1 P R O C E E D I N G S

2 - - -

3 CONTINUED DIRECT (John Dunckelman, Ph.D.)

4 BY MR. NETTLETON:

5 Q. Dr. Dunckelman, earlier we had talked about

6 any research that you might have been involved in

7 relating to BMPs. What I want to ask you now is have

8 you worked up any computer programs or computer

9 analyses of potential BMPs and their effects as far

10 as reducing phosphorus and effects on crops?

11 A. No, I have not.

12 Q. I'd like to return to the -- I believe it's

13 Exhibit Number 4, which is a copy of the excerpt from

14 the SWIM Plan and to the BMPs that are listed in

15 there for a moment.

16 A. Okay.

17 Q. First, with regard to the calibrated soil

18 test recommendation, do you know whether that has

19 been implemented to any extent already in the

20 Everglades Agricultural Area?

21 A. Yes. It has been implemented.

22 Q. Do you know the extent of implementation?

23 A. No. Not specifically. Not the exact

24 number.

25 Q. Do you have any general idea of what

1 percentage of the area is presently utilizing that

2 BMP?

3 A. I would say the majority.

4 Q. So over 50 percent?

5 A. I think so.

6 Q. Can you be any more specific or is that --

7 A. No. I think that's as close as I can get.

8 Q. Are there net -- any negative implications

9 from implementation of this BMP?

10 A. When you --

11 Q. Let me clarify.

12 Negative in the sense of adverse effects on

13 crops or yields.

14 A. If the soil tests are properly calibrated,

15 there should not be.

16 Q. Regarding the second BMP, the banding

17 versus broadcast fertilizing, again, has that been

18 implemented, to your knowledge, to any extent in the

19 EAA?

20 A. Yes. I mean it's been implemented to some

21 extent. Exactly how much, I don't know.

22 Q. Do you have a rough idea of what percentage

23 of the EAA is currently utilizing that?

24 A. Not the exact percentage, no.

25 Q. Would you say more than 50 percent or less

1 than 50?

2 A. I would say more than 50 percent on the

3 plant cane.

4 Q. What about vegetable?

5 A. I'm not familiar with what the vegetable

6 growers are doing.

7 Q. I believe you earlier indicated that plant

8 cane makes up about 30 percent of the crop each year.

9 A. That's correct.

10 Q. Are there any negative implications or

11 adverse effects from banding fertilizer to crops and

12 crop yields as opposed to broadcast fertilizing?

13 A. I think at least for sugar cane, no.

14 Q. What about for other crops?

15 A. I wouldn't be familiar with, again, what

16 people are doing specifically in vegetable crops, for

17 instance.

18 Q. Regardless of your unfamiliarity with the

19 area, have you heard of any negative or adverse

20 effects on yields of vegetable crops from banding

21 versus broadcast fertilizing?

22 A. No, I have not.

23 Q. And I would ask the same thing with regard

24 to number 3, which is the prevention of spills and

25 application to open waters.

1 A. Uh huh.

2 Q. Has that been implemented in the EAA to

3 your knowledge?

4 A. Well, we tend to look at these things as

5 being common sense, so, you know, if they haven't

6 been, they should have been and if they -- I mean

7 maybe this is -- or at least it should make people

8 more aware of a potential problem and they should be

9 taking extra care. Everyone is aware that this is

10 one of the BMPs they should be doing.

11 Q. As far as preventing spills which would

12 normally come with carelessness or something like

13 that, but what about the applications to water? I

14 believe I've seen references to altering means of

15 spreading the fertilizer to avoid those open waters.

16 Have those types of techniques been implemented?

17 A. My understanding is that many of the

18 companies are looking at that and it's going to

19 require some changes in the fertilizer application

20 equipment and I don't know just to what extent that's

21 being done, but I know it's being considered.

22 Q. Okay. But you don't know whether it's

23 been -- it's currently being used at this point?

24 A. No. I wouldn't know that exactly.

25 Q. Is it fair to say that all of your

1 testimony here is related to sugar cane as opposed to

2 vegetable crops? I mean do you have enough -- from

3 what we've been talking about here?

4 A. Yes. It's fair to say. I can't speak for

5 the vegetable industry.

6 Q. We talked a little bit about this before,

7 number 4, minimizing water table fluctuations.

8 Could you again describe to me what you

9 consider to be the potential adverse effects on plant

10 yield and crops that implementation of this BMP could

11 result in?

12 A. Well, again, if you anticipate heavy

13 weather, big rains, it would probably behoove you to

14 pump down to a low volume in your canals so you could

15 hold that extra runoff on your farm and be prepared

16 for it. Whereas if you want to minimize the water

17 table fluctuation and you don't pump down in event or

18 anticipation of a big rain, then you stand the chance

19 if you do get a large rain, having greater flooding

20 potential.

21 Q. Okay. And how does -- that relates to what

22 we discussed earlier as far as --

23 A. Right.

24 Q. -- if you have elevated water levels that

25 can affect the anaerobic conditions I believe you

1 said.

2 A. That's correct. It can affect the soil

3 oxidation and oxygenation.

4 Q. What you've relied upon with regard to that

5 is the one study you referenced before and, I

6 unfortunately did not locate it, plus the two reports

7 that were marked as Number 2 and 3?

8 A. In part and just my experience and training

9 as an agronomist.

10 Q. What other, if there are any other adverse

11 effects from this particular BMP being implemented,

12 would there be other than what you just described,

13 anticipating rainfall and pumping or results of that?

14 A. Well, we did talk about the possible

15 negative effects on germination you might recall and

16 that's an important one.

17 Q. Could you please repeat that?

18 A. What I'm telling you is that if you make a

19 new planting and you have vegetative sets buried in

20 the ground, seed cane, as we call it, the germination

21 of that cane can be affected very greatly by flooded

22 or wet conditions.

23 Q. What's the result? I mean how does it

24 affect it?

25 A. Well, it affects it mainly through two

1 routes. One would be that flooded conditions

2 decrease oxygen content so those young shoots would

3 be killed when they were inundated. Another would be

4 that it raises the propensity for soil born plant

5 pathogens, fungi especially, and their affect on

6 germinating seed cane. These are two very serious

7 effects.

8 Q. What specifically are you relying on or

9 what have you seen which supports that conclusion?

10 A. Well, I'm relying, again, on my general

11 training as a sugar cane agronomist, my pathology

12 training, the knowledge I have from the crop from

13 having grown it and worked in that crop for over ten

14 years. You know, just my general knowledge of the

15 disease spectrum that we have and the problems that

16 are associated with soil born pathogens.

17 Q. Are you aware of any specific studies or

18 research directed to address that specific issue?

19 A. Yes.

20 Q. Okay. Are they in the documents that

21 you've produced?

22 A. I don't think there are any specific to

23 that.

24 Q. Do you have possession of any of those

25 studies?

1 A. I -- I'm not sure.

2 Q. Is there a vast amount of literature out

3 there about this or are we talking about a few

4 isolated studies?

5 A. There's a vast amount of literature about

6 sugar cane pathogens and about soil born diseases in

7 sugar cane, yes, a vast amount.

8 Q. And aside from those general subject

9 matters, though, about the effects of elevated water

10 and how that results in the pathologies and as far as

11 affecting germination and affecting the other stuff

12 that we talked about which I'm skipping?

13 A. I would say there's probably a vast amount

14 of research work that's directly applicable to that

15 question.

16 Q. While we're sitting here can you think of

17 any specific study, recent study that's been done?

18 A. Yeah. Dr. Richard Raid recently did a

19 study at the Belle Glade Experiment Station where he

20 looked at the effect on sugar cane germination with

21 respect to pineapple disease which is a soil born

22 fungal disease and it's very much related to wet

23 conditions.

24 Q. That was the conclusion of that study?

25 A. That's one of the conclusions, but I mean I

1 think that was known ahead of time. It's obvious

2 from the study that that's true.

3 Q. What was his name again, Richard?

4 A. Richard Raid, R-a-i-d.

5 Q. Who's he associated with?

6 A. He's with the University of Florida at the

7 Belle Glade Experiment Station, plant pathologist.

8 Q. The effect on germination, again, that

9 would -- if we backed that up, it's the same

10 causative effect of the inability to pump down in

11 anticipation of rain and the possible flooding and

12 that's the result of that?

13 A. That's correct.

14 Q. Okay. Is there any negative or adverse

15 effects on crop yields other than eliminating the

16 ability of the agricultural interests to pump down in

17 anticipation of heavy rains?

18 A. I --

19 Q. Did you understand that?

20 A. It was a long question. I sort of lost

21 you. If you would, try to repeat it, please.

22 Q. If this BMP were implemented, I understand

23 what you've described is it prevents the farmers from

24 pumping down the water level in anticipation of the

25 heavy rain.

1 A. That's correct.

2 Q. Is there any -- and because of that if

3 there is a heavy rain it can increase the water

4 levels to the extent that it causes these problems

5 that you've discussed.

6 A. Right.

7 Q. My question, then, is there any other

8 problem with implementation of this BMP or potential

9 problem other than restricting the ability of the

10 farmer to drain down the water in anticipation of

11 heavier rains?

12 A. Well, I think, yes, that there probably are

13 some potential problems, other potential problems.

14 Q. Can you tell me what they are?

15 A. Well, one might be with getting machinery

16 and cultivation equipment into and out of the field

17 because it's going to make the conditions wetter.

18 There's a chance that it will.

19 Q. Well, again, this relates to -- you're

20 assuming, then, that the heavy rains come and create

21 the elevated water levels. I guess maybe my question

22 isn't phrased very well.

23 Is there any adverse effect on crops or

24 crop yield that results from the maintaining or even

25 minimizing the water table fluctuation in and of

1 itself?

2 A. I don't know that.

3 Q. Did you understand my question?

4 A. Yeah. I think I understand your question

5 and I don't think so because -- you are asking

6 specifically about fluctuation?

7 Q. Right.

8 In other words, if -- I mean do the plants

9 or crops respond better to the fact that the water

10 does fluctuate over time for whatever reason as

11 opposed to maintaining steady, assuming we don't have

12 the heavy rains coming in?

13 A. I don't have data, you know, to answer

14 that. I don't know the answer to that.

15 Q. The studies that you've referenced with

16 regard to the effects on germination, you indicated

17 there was a vast amount of literature concerning --

18 maybe I didn't get this clearly. What was it

19 concerning, the increased ability of the pathogens to

20 get to the seedlings or is it due to the decrease in

21 O2 which can kill the shoots or both or --

22 A. I don't remember your original question to

23 answer that.

24 Q. Well, let me ask it.

25 The Richard Raid report that you referenced --

1 A. Right.

2 Q. -- you indicated that supported the

3 conclusion that the elevated or wet -- elevated water

4 level or wet conditions can have an adverse effect on

5 germination, specifically, I believe, the pathogens

6 attacking the cane.

7 A. That's correct.

8 Q. Okay. Would that report also support the

9 proposition that the wet conditions decrease the O2,

10 the oxygen level?

11 A. I don't know if it would support it or not.

12 I've never actually read the paper. I've only heard

13 Richard make a presentation on it.

14 Q. Is there a substantial amount of literature

15 concerning this specific issue which would link the

16 wet conditions to the decrease in oxygen affecting

17 the shoots?

18 A. I think there would be a substantial

19 amount, yes.

20 Q. Are you familiar with any specific study

21 that you could refer me to, recent study?

22 A. No. Not right offhand.

23 Q. Are you aware if there was any such study

24 in the documents you provided?

25 A. Actually, I am. I want to recant that and

1 say that I am familiar with at least one.

2 Q. Can you tell me what that was?

3 A. That was the Deren study and I think I

4 mentioned it to you, but I haven't seen it, taken it

5 out and looked at it, produced it.

6 Q. Do you how spell Deren?

7 A. D-e-r-e-n.

8 Q. All right. Any other adverse effects from

9 the potential elevated water from the rainstorm other

10 than what you've mentioned so far?

11 A. There may be others. I don't know of any

12 right offhand.

13 Q. Number 5 of the BMPs is the retention of

14 on-farm drainage. Again, we discussed this for

15 awhile. I believe this is the way it's phrased here

16 is moving the water around in the various fields.

17 A. Uh huh.

18 Q. What, if any, are the adverse effects of

19 implementation of this BMP on crop yields or crops?

20 A. Well, again, I think what he's talking

21 about here is keeping more water on the farm than you

22 might normally under past operating conditions. So

23 if you're retaining more water, you're elevating the

24 water tables and you're running the chance of

25 increasing your risk of flood and --

1 Q. So it would be the same concerns with

2 regard to the other BMPs?

3 A. Sure.

4 Q. What about number 6, where we're talking

5 about moving vegetable field drainage water into

6 sugar cane or fallow lands? Would that involve the

7 same concerns again?

8 A. Yes.

9 Q. Any additional concerns other than what

10 we've already talked about?

11 A. With number 6 specifically?

12 Q. Right. Or number 5 if we haven't

13 previously mentioned it.

14 A. Well, I think in number 6 we're making an

15 assumption we're going to be able to use all of the

16 water, for instance, that we remove from vegetable

17 fields, that we'll be able to use it all on cane and

18 we probably would be able to do that.

19 Q. Would be able to do that?

20 A. I think so. I mean it's going -- a lot is

21 going to depend on the variables that are involved.

22 Weather is probably the most important.

23 Q. Okay. Let's look at BMP number 7 which is

24 the aquatic cover crop. What, if any, adverse

25 effects on crop yields would implementation of that

1 BMP have?

2 A. Well, this is something that's being done

3 now and, as far as I know, there are no adverse

4 effects on sugar cane from growing a rice crop.

5 Q. Do you know what percentage of the EAA is

6 currently implementing this particular BMP?

7 A. We're talking about aquatic crops here?

8 Q. Right.

9 A. I can't give it to you percentage wise. I

10 know we have about somewhere on the order of 24,000

11 acres of rice this past year, I believe.

12 Q. Are there any adverse effects on the soil

13 itself from planting the aquatic cover crop, the rice

14 as opposed to leaving the field fallow?

15 A. No, there are not.

16 Q. Between -- do you know what the total

17 acreage in the EAA is that is devoted to sugar cane?

18 A. Yes.

19 Q. What is that?

20 A. It's approximately 440,000 acres.

21 Q. Okay. And of that 440,000 acres, do you

22 know how much in a given growing season is not

23 devoted to growing cane during that time period?

24 A. Well, it depends on a farmer's rotation and

25 how much fallow land he chooses to keep. But it's

1 usually somewhere on any given farm between 10 and 20

2 percent of the land is either in rotation, fallow or,

3 you know, in another crop. In rotation or fallow, 10

4 to 20 percent, somewhere in that range.

5 Q. Do you know currently how much -- when you

6 mention the 24,000 acres of rice that is currently

7 planted, is that the entire EAA?

8 A. Yes.

9 Q. Do you know how many acres of the EAA are

10 currently, on a given growing season, left fallow?

11 A. No. No, I don't.

12 Q. Do you know if that information is

13 available anywhere?

14 A. No, I don't. I imagine it would probably

15 be, you know, known by each company individually, but

16 I don't know if anybody has a compile (sic) for the

17 entire EAA.

18 Q. Do you have any feeling for the general

19 break down? You have said 10 to 20 percent is either

20 in rotation or fallow generally.

21 A. Right.

22 Q. Of that 10 to 20 percent, do you have any

23 estimation of how much of that would be fallow versus

24 in rotation?

25 A. No. I don't have the exact numbers and I

1 wouldn't want to guess at that.

2 Q. I'd like to back up a second to number 4,

3 the minimizing the water table fluctuations.

4 A. Okay.

5 Q. Do you know if that BMP has been

6 implemented to any extent in the EAA?

7 A. I don't know to what extent it's been

8 implemented. I believe that a lot of growers are

9 doing this and that it's probably going to be an

10 important part of their BMP plans that they're

11 submitting in their permits. Because, again, I feel

12 like this is a very important BMP.

13 Q. When you say it's important, what do you

14 mean by important?

15 A. Well, what I mean is that it has a P

16 reduction potential here, according to this, to

17 reduce phosphorous losses by up to 50 percent, so

18 it's a significant BMP.

19 Q. Okay. So when you say important, you mean

20 in the sense that this is a high potential for

21 reduction of phosphorus?

22 A. That's correct. And I think it's

23 implemental by most growers.

24 Q. What about -- I think we can talk about

25 these together -- number 5 and number 6? Do you know

1 if those are currently being implemented?

2 A. Yeah. My belief is that those are being

3 implemented where they can be.

4 Q. Do you have any information as to the

5 quantity?

6 A. No. You know, I've never tried to quantify

7 how much of it is being done. I know some of it is

8 being done here and there.

9 Q. Okay. And then number 8, the on-farm

10 retention ponds --

11 A. Uh huh.

12 Q. -- we discussed that previously before?

13 A. Right.

14 Q. Do you know whether that is being

15 implemented to any extent within the EAA?

16 A. Within the EAA, no, not to any appreciable

17 extent.

18 Q. Are you aware of it being implemented

19 somewhere else?

20 A. I think outside the EAA right now,

21 especially in the citrus industry, it's being

22 implemented on a pretty grand scale.

23 Q. What locations?

24 A. Well, I mean citrus has moved down to

25 southwest Florida and growers I've seen in that area

1 almost invariably have some sort of a retention pond.

2 Q. Are you aware of any studies that have been

3 looking into the effects or the data that's been

4 collected