240
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. )
17
Volume III
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 - - -
Thursday January 21, 1993
22 319 Clematis Street, 5th Floor
West Palm Beach, Florida 33401
23 9:10 a.m. - 12:12 p.m.
- - -
241
1 APPEARANCES:
2
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
10
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
14
- - -
242
1 - - -
2 I N D E X
3 - - -
4
5 WITNESS: DIRECT CROSS REDIRECT RECROSS
6 John Dunckelman, Ph.D.
7
BY MR. NETTLETON 244 359
8 BY MR. ROSENBERG 298
243
1 E X H I B I T S
2 NUMBER PAGE
3 EXB. NO. 20 272
4 Letter from Dunckelman & Rosendahl
5 dated 9-16-91 to Izuno
6 EXB. NO. 21 298
7 Paper: Farmers' Alternative to State
8 Everglades Proposal 5-27-92
9 EXB. NO. 22 277
10 Economic Impact Statement for Chapter
11 40E-63: EAA Regulatory Program April 1992
12 EXB. NO. 23 277
13 Economic Impact Statement for Chapter
14 40E-63: Works of the District Oct. 1991
15 EXB. NO. 24 278
16 Presentation by Dr. Leo Polopolus 8-13-92
17 EXB. NO. 25 285
18 Proposal by Dr. Russell B. Rader
19 EXB. NO. 26 291
20 Duke University letter 8-28-90
21 EXB. NO. 27 362
22 Paper: Screening for and heritability of
23 flood-tolerance in the Florida (CP) sugar
24 cane breeding population
244
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. Good morning, Dr. Dunckelman.
6 A. Good morning.
7 Q. I'd like to go back to an area we discussed
8 yesterday and make sure that I have correctly
9 understood some of the opinions you have expressed.
10 If you can refer first to Exhibit Number 4, which is
11 the excerpt from the SWIM Plan and specifically pages
12 113 and 114 where the BMPs are listed.
13 A. Yes.
14 Q. For ease of reference I'm going to refer to
15 them by number. Am I correct that it is your opinion
16 that with regard to the BMPs numbered 1, 2, 3, 7 and
17 9 that, assuming those are properly implemented, that
18 there should be no adverse effect on crop yields,
19 crops, farming practice with regard to those
20 particular BMPs?
21 A. 1, 2, 3, 7 and 9, is that right?
22 Q. Right.
23 A. I'm looking at them. Yes.
24 Q. Okay. Am I also correct that it is your
25 opinion that with regard to BMPs 4, 5 and 6 that,
245
1 because those BMPs require the retention of water
2 on-farm, that this creates a risk of adverse effects
3 on crops or crop yields in the event of bad weather,
4 heavy rains which could raise the water level, water
5 table and even possibly create flooding?
6 A. Yes. I think that it increases the risk.
7 Q. Well, am I also correct that you have not
8 done any analysis to quantify the variability of the
9 risk?
10 A. No. I have not done that.
11 Q. Okay. Have you seen any research or
12 reports that have attempted to quantify this risk?
13 A. Not that I can recall right now.
14 Q. Are you aware of any research that's been
15 conducted or is going on or any analysis by anyone
16 who is attempting to quantify the risk attributable
17 to implementation of these water management BMPs, 4,
18 5 and 6?
19 A. I'm not personally aware of any research
20 ongoing right now that's looking at the effect of
21 elevated water table on sugar cane. I'm not
22 personally aware of any.
23 Q. Okay. Are you aware of any research,
24 whether going on now or previously done or analysis
25 that has been done by anyone concerning an attempt to
246
1 quantify, to give us some numbers of the amount of
2 risk that's involved with regard to the
3 implementation of these BMPs?
4 A. With regard to the implementation of these
5 BMPs in the Everglades Agricultural Area on muck
6 soils I'm not aware of any.
7 Q. Okay. Is it also -- am I correct that it
8 is your opinion that in the event of a heavy rain
9 situation where the implementation of these BMPs 4, 5
10 or 6, that the result could adversely affect crops or
11 crop yields and I believe you identified three ways,
12 if my notes are correct, adversely affecting
13 germination, decreasing the oxygen which could kill
14 shoots and increasing the ability of the pathogens to
15 attack the crops and I think you especially mentioned
16 the fungus. Is that correct?
17 A. That's correct.
18 Q. Are there any other ways other than those
19 three that were mentioned that you have an opinion
20 that elevated water level could adversely affect the
21 crops or crop yield?
22 A. Well, certainly it could possibly reduce
23 rooting volume -- root volume or the ability of the
24 plant to root. The plant will not root -- sugar cane
25 will not root into areas where there is no oxygen, so
247
1 if you elevate that water table, you would expect the
2 plant to have a somewhat shallower root system and
3 this could be injurious, especially from the
4 standpoint of harvesting.
5 Q. Okay. How is that injurious?
6 A. Well, if you have a reduced root volume
7 your plant is not going to be anchored as well and so
8 when you come into the field with machinery, there's
9 a possibility that you could uproot more of the
10 stubbles or ratoons that you need for the regrowth of
11 the ratoon crops, so that is a concern, I believe.
12 Q. As far as the reduction of the root volume
13 area is that, though, specifically related to
14 decrease in the oxygen that's available to the roots?
15 A. That's related to that, yes.
16 Q. Can you explain how the increased water
17 level or elevated water table adversely affects
18 germination?
19 A. Yes. Because what it causes is your -- is
20 a chance of having wetter conditions at germination,
21 especially during periods of rain, so plants need
22 water to germinate. They also need oxygen and if you
23 get flooding at germination for short periods of time
24 when the seed cane sets or the mother stalks that are
25 in the ground to give rise to the plant crop or the
248
1 first new crop from a planting, those are very
2 sensitive to flooding. So if you have cane that has
3 just sprouted and just germinated and the shoots are
4 very small and they are inundated it will kill them
5 in a relatively short period of time. So a risk of
6 flooding during the period when cane is being planted
7 is very serious.
8 Q. Okay. And is that, again, related to the
9 decrease in the oxygen?
10 A. Yes, decrease in oxygen.
11 Q. Can you explain how an elevated water table
12 increases the ability of the pathogens to attack the
13 crop?
14 A. Well, because many pathogens, especially
15 fungi, require wet conditions for spore germination.
16 It also affects soil temperatures. Wetness affects
17 temperature and temperature has a big effect on spore
18 germination in fungal pathogens. Some like cooler
19 temperatures. Some like warmer. Water definitely
20 has an effect on soil temperature.
21 Q. How does it affect the soil temperature?
22 A. Soils are generally going to stay cooler
23 longer if you have cool nights than dry soils would.
24 Q. And what particular fungi prefer cool soils
25 versus warm soils? Is there a break down?
249
1 A. The particular one we were discussing
2 yesterday, the pineapple disease pathogen, it likes
3 cool temperatures and most fungal pathogens like wet --
4 wetness for spore germination, vast majority of them.
5 Q. Okay. I think you may have just done this.
6 I was going to ask you to explain how the decrease in
7 oxygen kills the shoots, but was that related, again,
8 to what you just described as far as the germination?
9 A. Yeah. I mean, you know, are you talking
10 about the germinating or are you talking about mature
11 stems?
12 Q. Well, does it affect both?
13 A. Well, especially if there's inundation of
14 very small shoots during the germination period, that
15 can be very serious. Larger stems that can keep
16 their canopy, the top growth out of water, they have
17 a much better chance of withstanding a flood than a
18 new planting that has just germinated. Then, again,
19 it depends on the depth of the flood and the duration
20 of that flood.
21 Q. Now, yesterday when we were discussing
22 these opinions, you identified a number of different
23 studies, but am I correct that you're basing your
24 opinions here today -- or you're not relying
25 specifically on any of those studies, but you are
250
1 relying on your own general knowledge, background and
2 experience in the field?
3 A. I'm relying on both.
4 Q. Okay. The specific -- you're also relying
5 upon the specific studies that we discussed
6 yesterday?
7 A. I'm relying partially on those, yes.
8 Q. Other than the research reflected in the
9 studies that we marked yesterday as Exhibits 2 and 3,
10 which you were a coauthor on, have you been
11 personally involved in any other research or studies
12 or author or coauthored any other papers which
13 concern the effects of elevated water table on
14 farming practices, crop yields or crops?
15 A. No, I have not.
16 Q. And, just for the record, other than the
17 two that we had marked, you had also identified a
18 report by Deren?
19 A. Yes.
20 Q. And I would just like to ask you if -- I'm
21 going to read off of the bibliography here to just
22 see if this is the correct citation. It's a report
23 by Deren, Snyder, Miller and Porter 1991 entitled,
24 Screening for and heritability of flood-tolerance in
25 Florida (CP) sugar cane breeding population. Is that
251
1 the proper one?
2 A. From Euphytica.
3 Q. Okay.
4 A. Yes. That's it.
5 Q. This was published in the Netherlands?
6 A. Euphytica, I believe, is, yes. It's a
7 Dutch publication, Kluwer Publishers.
8 Q. Where was that research conducted?
9 A. It was conducted at Belle Glade, Florida.
10 Q. And I believe you also mentioned a study or
11 research that was done by Richard Raid at Belle
12 Glade.
13 A. Yes.
14 Q. He's with IFAS?
15 A. Yes. That's correct.
16 Q. And that had to do with the pineapple
17 fungus?
18 A. Pineapple disease, fungus.
19 Q. Do you know if there's an actual report
20 resulting from that research?
21 A. I'm not positive. I believe there is.
22 Q. Okay. What specifically have you seen that
23 you were relying upon?
24 A. I've heard Dr. Raid make a presentation on
25 his work concerning that pathogen before a group of
252
1 scientists.
2 Q. But you have not actually read a report?
3 A. No. I have not read his report, if there
4 is one.
5 Q. Where was this presentation made?
6 A. I believe, to the best of my recollection,
7 that it was made before the American Society of Sugar
8 Cane Technologists Florida Division meeting and it
9 was held at the Sugar Cane Growers Cooperative,
10 Florida.
11 Q. Do you recall when that was?
12 A. I believe it was 1991.
13 Q. Were there materials handed out at the
14 presentation?
15 A. I don't recall if he handed out materials
16 specifically about that experimentation.
17 Q. Were there -- was the data discussed?
18 A. The data was discussed in an oral
19 presentation that he gave with slides.
20 Q. To your knowledge, do you have copies of
21 any of this data or reports or anything else that
22 relates to this research?
23 A. No. I don't have any reprints of an
24 article that he may have published on it unless it's
25 in the proceedings of ASSCT.
253
1 Q. What is ASSCT?
2 A. The American Society of Sugar Cane
3 Technologists.
4 Q. I'd like to refer to Exhibit Number 2,
5 which is an article entitled, The Effect of Row
6 Spacing and Subsurface Drainage on Sugar Cane Yields.
7 And you are a coauthor of this?
8 A. Yes.
9 Q. Isn't it true that this report or analysis
10 in this report found that there was no effect on
11 plant cane or the first ratoon crop by the elevated
12 water levels?
13 A. There's no significant effect, that is
14 correct. No statistically significant effect in
15 plant crop or in the first ratoon crop on yield as
16 tons per hectare.
17 Q. Now, the report does find a statistically
18 significant difference with regard to the second
19 ratoon crop, is that right?
20 A. That's correct. A quite large one.
21 Q. Now, is this a statistical correlation as
22 opposed to an experiment to determine actual
23 causation?
24 A. I don't quite understand your question and
25 I have had some training in statistics and I'm not
254
1 sure you're phraseology there is correct.
2 Q. Okay. Well, let me try to correct it and
3 if I get it wrong again, you can tell me.
4 Does the statistical correlation that was
5 found with regard to the second ratoon crop here lead
6 to the conclusion that the elevated water levels were
7 the actual causal effect in the reduced yields?
8 A. We didn't use correlation analysis in this
9 experimentation.
10 Q. What did you do?
11 A. We used analysis of variants.
12 Q. Can you describe how that works?
13 A. Well, basically what you do is you design
14 the experiment, set up your hypothesis and then you
15 test the amount of measured variation among the
16 treatments against the error variation in the
17 experiment and if the treatment differences are
18 unexplainable simply by the error, then they're
19 declared to be significant at a certain F value which
20 is the ratio of the variants of error to the
21 treatment differences.
22 That's what we did here. We declared that
23 this difference in second ratoon was significant and
24 I think the important overriding fact to look at here
25 is that the -- in the combined analysis where we
255
1 combined the yields from all 38 different crops
2 together, that difference is significant. So what
3 this tells you is that in a normal cropping cycle you
4 can have a statistically significant difference,
5 therefore a important difference in the overall
6 productivity of that crop if you take it through the
7 whole cycle.
8 Q. Okay. Well, with regard to Exhibit Number
9 2, I don't believe there was any attempt, was there,
10 to combine the three crops?
11 A. Yes, there is. You'll notice underneath in
12 Table 1 where it says, "Average three year crop
13 cycle." We're on Exhibit 2.
14 Q. What page is that on?
15 A. I thought we were looking at Exhibit 2.
16 Q. You are right.
17 A. Here. Under the, "Average of the three
18 year crop cycle," you can see that in the first
19 column where we're comparing tons of cane per hectare
20 on the three year crop cycle there's a significant
21 difference in tonnage.
22 Q. Now, this research or study -- let me back
23 up to the significant difference that you found, in
24 your opinion, as a scientist.
25 Do you consider that as establishing that
256
1 the elevated water level was a causal effect?
2 A. Yes. That's what this experiment showed,
3 was that the drained versus the undrained treatment
4 was statistically significantly different over the
5 crop cycle for tons of cane per hectare.
6 Q. And, in your opinion, that equates with
7 determining causal effect?
8 A. That's exactly right.
9 Q. On page 5 of the study the last sentence
10 before the heading Spacing seems to indicate that
11 this was the first experiment of this nature which
12 collected data under these types of control
13 conditions. Is that correct, to the best of your
14 knowledge?
15 A. I participated in, as I recall, at least
16 two experiments that we did in these plots and there
17 may have been more before and after the ones that I
18 was involved in, so I can't tell you. If this
19 article publication says that this is the first
20 experiment then that's true.
21 Q. Do you feel that there was any possible
22 confounding effects of the results with regard to the
23 second ratoon crop created possibly by the means by
24 which the crop was harvested over the period of time
25 the three different crops were taken?
257
1 A. That's difficult to say. There's usually
2 some confounding effects in any experiment that you
3 do, especially in field experimentation, but the
4 whole point of experimentation and design of
5 experiments is to control the error, so we feel that
6 the treatment differences that we show between
7 drained and undrained are significant and that that
8 is the causal effect of the difference.
9 Q. Again, speaking of causal effect here, this
10 study did not seek to determine the actual condition
11 created by the elevated water level which caused the
12 reduction in yield, did it?
13 A. As I recall, we took quite a number of data
14 in this experiment including stalk diameters, stalk
15 lengths. We also measured redox potential in the
16 soil at different depths using electrical conductives
17 and electrodes buried at different depths. We also
18 looked at water table elevation effects very
19 carefully through the use of Penman chart recorders.
20 Q. Can you describe what redox is?
21 A. It's the oxidation reduction potential of
22 elements found in the soil including iron, aluminum
23 and other metallic elements which change according to
24 their oxygenation state.
25 Q. What does redox data show you?
258
1 A. I don't think we presented redox data in
2 this particular publication and I don't, you know,
3 have those data to go along with their experiment,
4 but basically what the redox data would tell you is
5 the state of oxygenation at any given level for
6 which -- in the soil profile for which we were
7 measuring it and that's directly related to the
8 deoxygenation as a cause of elevated water table.
9 Q. Okay. But in this study there's no attempt
10 to use the data concerning oxygen levels and to
11 correlate those to the decrease in crop yield.
12 A. You know, it's been awhile since I have
13 read it. As far as I recall, looking at publication
14 2 here, I don't think we have any of those. I don't
15 see any data presented in a table, so I assume you're
16 correct.
17 Q. I'd like to look at Exhibit Number 3, an
18 article entitled, Yield Response to Stalk Density and
19 Subsurface Drainage Treatments.
20 Again this is another article that you were
21 coauthor on, is that correct?
22 A. Yes, that's correct.
23 Q. Having reviewed this, it seems to me that
24 this appears to be a reanalysis of essentially the
25 same data that's discussed in Exhibit Number 2, is
259
1 that right?
2 A. Again, I'd to have to make a comparison
3 there and see when the plantings were made and so
4 forth.
5 Q. Could you do that just briefly?
6 A. Yes.
7 Yes, it does.
8 Q. And, again, the results of the analysis
9 suggest, with reference to page 175, with regard to
10 the plant crop, the finding is that the subsurface
11 drainage had no effect on stalk densities, cane yield
12 or sugar yield in the plant crop, is that correct?
13 A. That is the conclusion.
14 Q. And also with regard to the first ratoon
15 crop, other than an interaction with regard to one
16 particular plot, the conclusion is that the
17 subsurface drainage did not significantly affect
18 yields although there was a tendency for higher
19 yields from subsurface drained plots?
20 A. That's correct. We're basing that strictly
21 on a means because there is a difference there
22 between the mean numbers and that's why we said there
23 was a tendency for there to be a higher yield in the
24 drained than undrained plots. Because of the design
25 of the experiment being a split plot, we, you know,
260
1 lose a little bit of precision on the plots, which
2 were the drained versus undrained. At the design of
3 the experiment and the levels of those means, we
4 couldn't declare them statistically different.
5 Q. So it was not a significant difference?
6 A. It was not a statistically significant
7 difference.
8 Q. Is the data that's relied upon to determine
9 the density shown in the report?
10 A. Again, we relied strictly on the trends
11 that we saw in the means, the averages coming out of
12 the plots.
13 Q. Are those graphically displayed somewhere?
14 A. I don't see those anywhere on the back few
15 pages. We do have some numbers that might
16 demonstrate that, but not graphs.
17 Q. Now, with the exception that the first
18 ratoon concerned a single plot, am I correct that the
19 discussion on page 176 under Ratooning suggests
20 various confounding factors that may have adversely
21 affected that plot so that the data may have been
22 messed up in some regard?
23 A. Are you referring to a specific passage
24 from which you're drawing that conclusion?
25 Q. Starting with the first sentence under the
261
1 Ratooning heading on page 176 as well as the
2 remainder of that discussion, but throughout their
3 report here there seems to be a difference between
4 that one particular plot, the 0.6 meter V-furrow plot
5 which apparently was for some reason not consistent
6 with the other plots.
7 A. Let me explain that to you. What we were
8 looking at in this experiment was a split plot design
9 and we had drained versus undrained as the main plot
10 factor. And then within each of those drained or
11 undrained plots we split those plots and we applied
12 several other treatments.
13 The treatments we were looking to analyze
14 were row spacing and row configurations because in
15 Louisiana because of soil topography sugar cane is
16 grown on a raised bed and those beds are placed six
17 feet or 1.8 meters apart. So this was a treatment
18 where we were looking at three foot spacings and we
19 were planting not on a raised bed, but on the flat
20 ground. We were not raising a bed. The reason we
21 were not raising a bed is because with three foot
22 planting in sugar cane, it's very difficult with the
23 tools available to raise a bed at three feet apart,
24 whereas at six feet it's very easy. So we did not
25 have the elevation on those three foot beds that we
262
1 had on the conventional six foot spacings where we
2 had rowed up and created beds which is standard
3 practice in Louisiana.
4 So I would say, if anything, the flat
5 planting would be more akin to what we're doing here
6 in Florida. We do not raise beds here, Florida.
7 Q. That was going to be my next question.
8 What is the practice in Florida as far as beds?
9 A. The practice is to plant -- our lines are
10 drills of cane. The plantings themselves are spaced
11 five feet apart. They're not planted on raised beds.
12 The furrows are open and re-covered so you have a
13 flat surface to the field after the cane is planted.
14 Q. If beds were used in South Florida that
15 would, in fact, increase the effective depth of the
16 water table, wouldn't it?
17 A. I don't know. I'd have to give it some
18 thought. It possibly could. I'm not sure if it
19 would or not.
20 Q. Well, I mean by raising the seedling or the
21 crop up, wouldn't that necessarily increase the
22 distance to the water table?
23 A. The reason we raise beds in Louisiana was
24 to have a water furrow between those raised beds, but
25 you have to keep in mind that even though the top of
263
1 the row may be slightly higher, you are getting that
2 dirt from the water furrow, so I don't know exactly.
3 Even though you have a raised bed, that may be, in
4 Louisiana, for instance, 14 to 18" high, I don't know
5 how much the top of that bed is raised over the
6 original elevation of the flood field, so your
7 question is logical, but I'm not sure if I can answer
8 it without actually going out and making those
9 measurements.
10 Q. Well, assuming, though, that the bed
11 increased the elevation from the original level of
12 the ground, that would necessarily increase the
13 distance between the root system and the water table,
14 isn't that right?
15 A. Well, you're making an assumption there,
16 and, again, I'm not going to make -- I'm not going to
17 say your assumption is correct. It may very well be,
18 but --
19 Q. Assume it's correct without holding me to
20 it.
21 A. Let me say we're not going to be able to
22 grow on raised beds in Florida with the type of
23 machinery we're going to for harvest. It's going to
24 be a problem. It's not a practical idea, but if you
25 had to pin me down and ask me for a yes or no on
264
1 that, I would say that, yes, it's possible that
2 that's correct.
3 Q. Doesn't the discussion on page 176 also --
4 well, let me back up a second. I believe that is
5 consistent with the results of Exhibit Number 2, that
6 in Exhibit Number 3 the conclusion is also made that
7 there is a significant difference with regard to the
8 second ratoon crop between the drained and undrained
9 plots. Is that right?
10 A. That's right. That's what the data showed.
11 Q. Now, doesn't the discussion in this study,
12 specifically on page 176, indicate that there may be
13 various confounding factors such as the cane variety
14 may have had an impact on the ratooning? At the
15 bottom of page 176 it refers to the combine in
16 particular may have uprooted or damaged some stubbles
17 so that stalk density in subsequent crops were
18 significantly reduced. Aren't those all factors that
19 could have adversely or confounded the results of the
20 second ratoon data?
21 A. I would think that if they confounded the
22 second ratoon data that they very well could have
23 confounded the first ratoon data also and we, again,
24 feel that there was very good evidence that the
25 significant difference in tons of cane per hectare in
265
1 the second ratoon crop was caused by the fact -- by
2 the difference between drained and undrained and some
3 of those other differences, confounding differences
4 or factors that you may be asking about, may also be
5 directly caused by drained versus undrained. Like,
6 for instance, having a wetter harvest condition is
7 caused by the fact that it's undrained and that could
8 be a very important factor just how much damage you
9 do during the harvest --
10 Q. Okay.
11 A. -- but that's directly related again to
12 wetness a lot of times.
13 Q. But there was no analysis done with regard
14 to this particular experiment to try to correlate
15 those items, was there?
16 A. We -- we did notice that in the wetter
17 plots where we had wetter plots that at times we did
18 have more difficulty harvesting, but --
19 Q. Is that stated in the report anywhere?
20 A. As far as I know, it's not. We've -- I
21 think it's been stated. It has been stated in other
22 reports where we've looked at cane in these plots and
23 I may or may not have been involved in those
24 experiments. I was involved in this particular set.
25 I know for a fact there were other experiments done
266
1 in the plots. We looked at different varieties.
2 That's another thing you mentioned. That definitely
3 can be a confounding factor, because varieties do
4 react differently to having wet feet depending on
5 their genetics. Those types of confounding factors
6 or some of them are or can be explained by the error
7 variance in an experiment too.
8 Q. I also note on page 177 last full sentence
9 on that page also indicates that, "Sugar cane yields
10 in Louisiana normally decline in ratoon crops." Is
11 that accurate?
12 A. Yes. That's accurate.
13 Q. So there would be expected decline in the
14 yield regardless of whether you were controlling
15 water depth, isn't that right?
16 A. Ratoon crops in Louisiana do decline and
17 the standard rotation there is plant cane crop and
18 two ratoons.
19 But what we're showing in this experiment
20 is that your second ratoon crop is going to be much
21 less between drained and undrained. So if you
22 control drainage and you have proper drainage you can
23 expect to make a better second ratoon crop. That's
24 what the experiment shows.
25 Q. On page 176 under Subsurface Drainage
267
1 heading, it indicates, "Water itself does not
2 adversely affect plant roots but conditions caused by
3 the water do."
4 Now, again, it goes on to talk about
5 reduced oxygen and buildup of carbon dioxide. Is
6 that essentially what you previously testified?
7 A. Yes.
8 Q. Again, in this particular experiment, was
9 there any attempt made to correlate or to measure --
10 first of all to measure the levels of oxygen, carbon
11 dioxide in the soils and correlate that to the
12 effects on the yields?
13 A. Other than looking at redox potential and
14 having the Penman chart recorders there, I don't know
15 of any. Although, I was not directly responsible for
16 that portion of the experiment, other than to go out
17 regularly and take the redox potential measurements
18 at the electrode sites. Mr. Carter and his aide did
19 the majority of the hydrologic work related to this
20 experiment and some of those data are not published
21 in this particular paper. They may be published
22 elsewhere.
23 Q. Were the crops that were harvested during
24 this experiment screened or checked for various
25 pathogen effects?
268
1 A. You know, as an agronomist going through
2 the plots and making the harvest, we're always
3 cognizant of problems that we might have with
4 pathogens or with damage from other factors or
5 anything, but as far as I know, we didn't have that
6 kind of damage in this experiment. We went in and
7 took growth measurements and took regular stalk
8 counts in experimentation, any of those sort of
9 damages would have been noted and they would be noted
10 in the experiment as confounding effects.
11 Q. Any effects that may have occurred through
12 pathogens or any kind of pests that may have attacked
13 or somehow affected the crop yield, would any of
14 those have been visible or discovered through the
15 system that was used to harvest these crops?
16 A. Sure.
17 Q. Okay.
18 A. Again, we were in the cane itself regularly
19 examining it and taking measurements so we would have
20 noticed those things. For instance, an insect
21 infestation, we would have noticed that and taken
22 care of it.
23 Q. If there had been an insect infestation and
24 you took care of it through whatever means,
25 pesticides or something like that, would that have
269
1 been set forth in the report?
2 A. Probably -- other than to say that it was
3 grown under standard commercial plantation practices,
4 probably not. Unless it was something that was
5 really outstanding.
6 Q. Well, do you recall any such--
7 A. No.
8 Q. -- occurrences?
9 A. No, I do not.
10 Q. Figure 7 on page 177, can you tell me what
11 that graph is suppose to represent?
12 A. Figure 7?
13 Q. Right.
14 A. We spoke about this a little bit yesterday
15 and, again, this is -- was not my graph. This is a
16 graph that was done by the hydrologist who was
17 another of the authors on this paper. Basically what
18 he's saying SEW30 is the -- is an index of the water
19 table or the frequency that the water table went
20 above 30 centimeters during the crop year. I believe
21 that's the way he describes it. So what he's doing
22 here is he is regressing the yield of sugar cane on
23 SEW30 to see if there's a relationship between
24 elevation of the water table and the yield and tons
25 per hectare of cane.
270
1 Q. Am I correct that only eight data points
2 are used to establish this correlation?
3 A. Looks to me like those are the eight
4 averages of the drained versus undrained plots, so
5 those would be a average of the numbers taken at the
6 Penman recorders over a long period of time, so to
7 say that there are only eight observations is
8 incorrect. There's only eight means shown there
9 based on quite a number of observations. I don't
10 know exactly what the actual number of M or
11 observations of means is. This was a three year
12 experiment. We took them -- at least weekly the
13 charts were collected.
14 Q. Well, referring over to the first column on
15 that page, just above the equation, it indicates,
16 "Only eight data points were used in this
17 correlation, but they indicate the trend that exists
18 between SEW30 and cane yields."
19 A. Right. Again, this relates back to the
20 design of the experiment. We would like to have had
21 16 main plots. Unfortunately, we've only had four
22 replications because they were one acre in size and
23 they were very expensive to install. They had
24 subsurface drain lines in them. There was a
25 elaborate system of sumps and pumps to take water
271
1 drainage back from the plots and there was a large
2 cost in installing them and a lot of work, so we had
3 an eight acre experiment, which is a fairly large
4 field experiment, to harvest and weigh and we did
5 harvest and weigh the entire plots. So to have more
6 than that would have been impractical.
7 Q. Well, in your opinion as a scientist, do
8 you believe that these eight data points are
9 sufficient to establish any kind of a trend?
10 A. Yes. I feel that they are sufficient to
11 establish a trend. We would probably liked to have
12 had more to look at it from the statistical -- better
13 point of view -- statistically better point of view.
14 Q. What is the significance of the r2=.58
15 reflected on the chart?
16 A. That's the correlation coefficients and
17 what that is saying, that number can be expressed as
18 running from negative 1 to positive 1 with 0 being no
19 association and numbers from 0 up to 1 showing
20 positive association. So what this is saying is that
21 there's a 58 percent positive association between
22 tons of cane per hectare and the SEW30 numbers.
23 Q. Is there a specific number that is
24 generally understood in the scientific community for
25 the r2 before a reliance is given to a specific
272
1 correlation?
2 A. I'm sorry. I don't quite understand what
3 you are saying there.
4 Q. Is there any number that's generally
5 associated with the r2 such as a 90 percentile or
6 something like that which is generally looked at as
7 being required before any specific or significant
8 correlations can be drawn?
9 A. Correlations of 90 percent are rare in
10 agricultural experimentation. Generally you'll find
11 they run from 50 to 70 percent, in that range.
12 Generally that's considered a relatively fair to
13 strong correlation.
14 Q. Have you done any analysis in order to
15 formulate any opinions on what effect, if any, the
16 monitoring or compliance provisions of Rule 40E-63
17 will have on farming practices or crops or crop
18 yield?
19 A. No, I have not.
20 (The document was marked Exb. No. 20.)
21 BY MR. NETTLETON:
22 Q. Showing you what has been marked as Exhibit
23 Number 20, yesterday we had discussed briefly the
24 fact that the League had provided $30,000 to Izuno
25 and Bottcher for purposes of conducting their
273
1 research.
2 Does this exhibit, the letter and attached
3 copy of the check, reflect what you were testifying
4 about yesterday?
5 A. Yes, it does.
6 Q. Okay. The letter makes reference to the
7 fact that these moneys are an unrestricted gift, is
8 that right?
9 A. That's correct.
10 Q. What does an unrestricted gift mean?
11 A. That means we were attaching no
12 stipulations as to how it should be used. In other
13 words, there's an account at IFAS known as the SHARE
14 Account, S-H-A-R-E, which is an acronym for some sort
15 of program which indicates that the money can go into
16 what they call a SHARE Account and it can be used at
17 the scientist's own discretion as he sees fit. In
18 other words, it's not -- there's not a signed
19 contract saying this is what you have to do for this
20 money. That's what it means by unrestricted.
21 Q. Is this a normal practice that the League
22 engages in of giving these types of gifts in these
23 sorts of amounts to research?
24 A. We give some of our money -- at least the
25 agricultural research program that I oversee is given
274
1 to scientists as SHARE money to be used as an
2 unrestricted gift. Other money, depending on the
3 project and cost of experimentation, we've actually
4 done signed program agreements so we know
5 specifically and so the scientists involved know
6 specifically what we're seeking in the research and
7 so that we all agree on that. It depends. We do
8 both.
9 Q. Can you give me any examples other than
10 this one in the recent past where the League has
11 given such gifts to scientific institutions for
12 research?
13 A. Yes, I can.
14 Q. Tell me what they are.
15 A. We, for instance, gave Dr. Ron Cherry --
16 he's an entomologist at the Belle Glade Experiment
17 Station -- $10,000 in a SHARE Account to use in his
18 entomological research program on sugar cane as he
19 see fits, how he chooses. We didn't say this is the
20 specific research we want you to accomplish.
21 Q. When was that done?
22 A. I think for the last two years now we've
23 given Dr. Cherry grants that have gone into his SHARE
24 Account.
25 Q. How do you spell his name?
275
1 A. C-h-e-r-r-y Ron Cherry.
2 Q. Is he with IFAS?
3 A. Yes, he is, Belle Glade.
4 Q. Any other examples?
5 A. There may be others, but, you know, I -- we
6 look at a number of proposals every year. For this
7 year we had over 20 and I don't know exactly, you
8 know, but we haven't actually let funding out for
9 this year. To go back and remember how the funding
10 was arranged on each of the projects we arranged last
11 year, I can't tell you that, except I know we did
12 Ron's that way.
13 Q. This is a document that you provided to me
14 yesterday and unfortunately I wrote on it, so I don't
15 want to mark it as an exhibit and I didn't make any
16 copies. But it's called -- entitled, Farmers'
17 Alternative to State Everglades Proposal Shorter
18 Version, dated May 27, 1992. And this appears to be
19 a transcript, if you will, or notes from an oral
20 presentation that was given.
21 Are you familiar with this?
22 A. Yes, I am, although I'd like to look at it
23 and make sure we're talking about the same thing.
24 You didn't show it to me.
25 MR. ROSENBERG: What's the date on it if I
276
1 can ask?
2 MR. NETTLETON: May 27, '92.
3 MR. ROSENBERG: Excuse me?
4 MR. NETTLETON: May 27, '92.
5 THE WITNESS: Yes. I'm familiar with it.
6 BY MR. NETTLETON:
7 Q. Who gave the presentation?
8 A. My boss Andy Rackley has given that
9 presentation and I have made presentations before
10 too.
11 Q. Essentially following this script here?
12 A. We've had a couple of different versions of
13 that. I believe that's the one that I followed.
14 Q. Who did you make the presentations to?
15 A. I've made it several times. The last that
16 I remember it was made to the Miami -- North Miami
17 Chamber of Commerce in Hialeah and I've also made it
18 to the Lake Worth -- I believe it was the Chamber of
19 Commerce and those are the only two that I recall. I
20 did make it to a rotary club too once. I don't
21 remember exactly where that rotary club was.
22 Q. What's -- what was the purpose behind
23 giving these presentations?
24 A. Well, the title is pretty much
25 self-explanatory. It explains the alternatives --
277
1 our ideas for alternatives to the Stormwater
2 Treatment Areas that the District is proposing to
3 deal with in the SWIM Plan.
4 Q. Why were you going to these various
5 different entities making these presentations?
6 A. We were going to explain our position on it
7 because we felt that it was something that public and
8 business people needed to know about.
9 MR. NETTLETON: What I'd like to do is have
10 this marked after the deposition. I'll get a
11 clean copy of it and we can mark it as Exhibit
12 21. Set that aside.
13 (The documents were marked
14 Exb. Nos. 22-23.)
15 BY MR. NETTLETON:
16 Q. Marked as Exhibit Number 22 is a document
17 entitled, Economic Impact Statement for Chapter
18 40E-63 Everglades Agricultural Area Regulatory
19 Program dated April 1992. And marked as Exhibit
20 Number 23 is a document entitled, Economic Impact
21 Statement for Chapter 40E-63: Works of the District
22 within the Everglades dated October 1991.
23 I'd like to ask you concerning both of
24 these reports here -- ask you jointly to maybe save
25 some time and we can split them out if we need to --
278
1 have you reviewed these reports in the past?
2 A. I have seen these reports. I have not
3 reviewed them.
4 Q. Have you done any type of analysis of the
5 conclusions or the contents of these reports?
6 A. I have not.
7 Q. Do you intend to offer any opinions at
8 final hearing in this matter concerning the reports
9 in any way?
10 A. I do not.
11 Q. That's all I have on that.
12 (The document was marked Exb. No. 24.)
13 BY MR. NETTLETON:
14 Q. Do you know who Dr. Leo Polopolus is?
15 A. Yes, I do.
16 Q. Who is he?
17 A. He's a scientist with the University of
18 Florida, an economist who has done work -- special
19 work in sugar cane; economic analysis in sugar
20 marketing.
21 Q. Are you aware whether he has been retained
22 as an expert witness in the present litigation by the
23 League?
24 A. I don't know that for sure. I am suspect
25 of that, but I don't know one way or another whether
279
1 he has or hasn't at this point.
2 Q. Are you aware of the fact that he is doing
3 research for the League relating to economic impact --
4 A. Yes. I was aware of that.
5 Q. Let me finish my question.
6 -- economic impact of the SWIM Plan in the
7 Regulatory Program?
8 A. Yes.
9 Q. Have you had any discussions with
10 Dr. Polopolus relating to his economic analyses?
11 A. No, I have not.
12 Q. Was Dr. Polopolus involved in the meetings
13 of the economic people that we were discussing
14 yesterday between Lynch and Grace Johns and those
15 people?
16 A. I have personally never been to a meeting
17 where Dr. Polopolus was present, so I would not know
18 that.
19 Q. Have you ever had occasion to discuss with
20 Dr. Polopolus the quantification of the risk
21 variabilities to crop yields through implementation
22 of the BMPs?
23 A. No, I haven't.
24 Q. So have you ever provided him any
25 information relating to that?
280
1 A. No, I have not.
2 Q. Turn to page 24 on Exhibit Number 24.
3 A. 24?
4 Q. Right: On page 24 of this exhibit,
5 Dr. Polopolus has indicated that the Hazen & Sawyer
6 report is deficient in that it ignores the increased
7 risk to growers' yield caused by BMPs and he
8 suggested a better approach would be to include
9 consideration of an increase in yield risk
10 variability of 10 to 25 percent as impact to the
11 BMPs.
12 Do you see that there?
13 A. Yes, I do.
14 Q. Do you know what he's relying on to
15 calculate that 10 to 25 percent?
16 A. No, I don't.
17 Q. If you turn back to page 15 of the
18 document, Dr. Polopolus has some references to
19 constraints that were placed on Hazen & Sawyer and
20 the third one refers to public disclosure and
21 inability to protect confidential information.
22 Do you know what's being referred to there?
23 A. I believe what's being referred to here is
24 the fact that Dr. Johns could not guarantee
25 confidentiality of some of the data that we could
281
1 offer, so that stifled the production of that data
2 for her in her effort to finish her report.
3 Q. So it's your understanding that
4 Dr. Polopolus was of the opinion that the Hazen &
5 Sawyer report was some how deficient because it
6 didn't -- because Hazen & Sawyer didn't have access
7 to certain documents?
8 MR. STOTTS: Objection. You are asking for
9 his opinion of someone else's opinion.
10 MR. NETTLETON: I asked of his
11 understanding. A little different.
12 MR. STOTTS: Not much. You can answer if
13 you --
14 THE WITNESS: Let me clear this up for you.
15 I think I can make it easy for you.
16 I only met Dr. Polopolus one time. I met
17 him as I was coming out of the elevator at South
18 Florida Water Management District and he was
19 going in and I shook his hand and told him, It
20 was very nice to meet you, sir. My name is John
21 Dunckelman. I'm with Florida Sugar Cane League.
22 We shook hands and that was the only occasion I
23 talked with Dr. Polopolus. I've never had a
24 phone conversation with him. That's the only
25 chance I've had to ever meet him personally. If
282
1 you are going to ask me questions about what I
2 know about what Dr. Polopolus and things, I've
3 never asked him what he thinks.
4 BY MR. NETTLETON:
5 Q. Have you seen what's been marked as Exhibit
6 24 before our deposition here?
7 A. Yes, I have.
8 Q. Have you had a chance to review that in the
9 past?
10 A. Only to peruse it. I didn't review it
11 because it's an economic analysis. It's his economic
12 analysis. I'm not an economist. I'm not even going
13 to try to review it.
14 Q. Were you present at any meetings where
15 Dr. Polopolus made this presentation?
16 A. No, I wasn't. I wanted to be and I was at
17 the District. The day he came there was when I met
18 him, he was making the presentation, but
19 unfortunately, I was at another meeting at the
20 District, I believe, of the -- one of the water
21 supply plan advisory committees so I could not see
22 his presentation. I have never seen him make this
23 presentation personally.
24 Q. What interactions, if any, do you have with
25 the scientists associated with the Duke Wetland
283
1 Center who are conducting research relating to the
2 Everglades?
3 A. I know them and I know that they have a
4 large project with the Environmental Protection
5 District to study the wetland ecology of the Water
6 Conservation Areas and I believe they would like to
7 study the Park too, but I don't know if they have
8 gotten into the Park yet. Other than to say that I
9 know them and I've spoken to them from time to time
10 briefly, I'm really not extremely familiar with the
11 work that they have done.
12 Q. Are you familiar with the research -- well,
13 let me ask you this. Are -- is the Duke Wetland
14 Center or anyone associated with that currently
15 conducting any research on behalf of the Florida
16 Sugar Cane League?
17 A. As far as I know they're not. At least
18 they're not doing it under my venue or jurisdiction.
19 I don't know of any.
20 Q. You mentioned that you are aware that
21 they're doing some research for the Environmental
22 Production District.
23 A. That's correct.
24 Q. Do you know precisely or specifically what
25 areas of research they are conducting for EPD?
284
1 A. No, not specifically and not precisely.
2 Only in general.
3 Q. Can you tell me what your general
4 understanding of that research is?
5 A. My general understanding is they are to
6 study the ecology of phosphorus dynamics and plant
7 communities and also the, you know, algae, macrophyte
8 effects from nutrient enrichment and so forth.
9 Q. Have you ever seen any of the reports that
10 they have issued to the EPD?
11 A. I may have seen one or two of them, yes.
12 Q. Do you have access to drafts of those
13 reports coming from Duke Wetland Center before
14 they're issued to EPD?
15 A. I've never been asked to review Curtis
16 Richardson's report to EPD, no.
17 Q. So you've never made any comments on any of
18 their reports prior to their submission?
19 A. Not on any of their EPD reports as far as I
20 know.
21 Q. Do you know whether anyone else associated
22 with the Florida Sugar Cane League or its members has
23 reviewed and made comments on preliminary drafts of
24 their reports before they are submitted to the EPD?
25 A. That I don't know.
285
1 Q. Do you know whether the Duke Wetland Center
2 or anyone associated with it has currently done or is
3 conducting any research for any other agricultural
4 interests in the EAA other than the EPD?
5 A. I have no knowledge of that.
6 Q. Do you have -- do you consider yourself as
7 having expertise in the areas of phosphorus effects
8 on periphyton?
9 A. Absolutely not.
10 Q. Phosphorus effects on dissolved oxygen?
11 A. No, I don't.
12 Q. Phosphorus effects on invertebrates?
13 A. No, I do not.
14 Q. The phosphorus storage efficiency of
15 wetlands in open water communities?
16 A. No, I do not.
17 Q. The community structure and function and
18 the ability of the wetlands to recover after
19 phosphorus additions?
20 A. No, I do not.
21 (The document was marked Exb. No. 25.)
22 BY MR. NETTLETON:
23 Q. We're showing you a document that's been
24 marked as Exhibit Number 25 which is entitled,
25 Influence of Soluble Reactive Phosphorus on Open
286
1 Water Communities, a proposal written by Dr. Russell
2 Rader and submitted to Dr. Curtis Richardson. And
3 there's a little note on the side. I assume that's --
4 the John that's referring to is you, is that correct?
5 A. That's correct.
6 Q. Am I correct that this is a proposal to
7 determine the threshold concentrations of phosphorus
8 which will affect various parameters; periphyton,
9 invertebrates?
10 A. That's the way I see it, yes.
11 Q. Why was Dr. Rader sending this to you?
12 A. Well, again, I've said that, you know, I do
13 occasionally talk to them and I will occasionally
14 stop and see them when they're down here doing their
15 research just to ask them how things are going and
16 ask them if there are any developments and just to
17 kind of touch base in a friendly manner more than
18 anything else. And I believe that, you know, that I
19 stopped in at one point coming back from Palm Beach
20 and spoke to Richard and asked him what he had been
21 doing in the way of research and he told me that they
22 were, you know, working on certain issues related to
23 the ecology of the wetlands and I asked him if it
24 would be possible for me to come out and see what was
25 going on and this was probably part of his reply to
287
1 me, saying I thought you -- you know, you might be
2 interested in seeing what we're doing and he's given
3 me invitations to come out and visit the plots
4 before, which I haven't done but once and it was not
5 with Richard.
6 Q. Which plots did you go out to?
7 A. I went out to the plots that they had in
8 Water Conservation Area 2.
9 Q. 2A?
10 A. I don't remember whether it was A or B. It
11 was 2. That's all I remember. It's been a long time
12 ago.
13 Q. Who did you go out with?
14 A. I went out with Bob Johnson.
15 Q. What did you do when you were out there?
16 A. I just accompanied Bob on his normal round
17 to inspect the plots and to apply the fertilizer
18 nutrients that they were treating the plots with and
19 just for general knowledge and information. Just to
20 see the area.
21 Q. Did you understand what particular
22 experiment was being conducted?
23 A. As I recall, it was a fertilizer --
24 fertilization experiment where they had some small
25 plots established that were bordered by fiberglass
288
1 sheeting and they were applying fertilizer nutrients
2 to see what happened to the ecology within those
3 plots.
4 Q. What was the purpose of you going out
5 there?
6 A. Just, again, just general information on my
7 part. I asked to go to see what was going on.
8 Curiosity.
9 Q. Would the date that this Exhibit Number 25
10 is stamped received, June 27, 1991, reflect when you
11 received this --
12 A. Yes.
13 Q. -- approximately?
14 A. That's correct.
15 Q. Have you had any further involvement with
16 this specific proposal?
17 A. No, I have not.
18 Q. Has anyone at the League to your knowledge?
19 A. To my knowledge, no. You'll notice it
20 doesn't say it's submitted to the League. It says
21 it's submitted to Curtis Richardson.
22 Q. Did Dr. Rader ask you to provide any
23 comments concerning his proposal?
24 A. As far as I remember, he did not.
25 Q. Did you, in fact, provide any comments
289
1 concerning the proposal?
2 A. I don't think I did. I see a few notes
3 that I made. For instance, on page 3 I wrote arrow
4 weed over Sagittaria. That's because I didn't know
5 what it was. I wrote it there for my own edification
6 on the copy I was keeping. This was thrown back on
7 my credenza and that's where it stayed until it was
8 surrendered to you. I'm not really relying on this
9 document in any way. I didn't know it was
10 surrendered to you.
11 Q. There's references every once in a while on
12 the pages, "Do not copy."
13 A. That's not my handwriting.
14 Q. Do you know why that was written on there?
15 A. Well, I imagine because not too many people
16 had seen this and Richard probably didn't want it to
17 be generally distributed. I'm sure that's what his
18 concern was. It wasn't so much to be covert, he
19 didn't want it going out until there was some sort of
20 disposition assigned to it.
21 Q. Did you have any understanding that this
22 was a draft proposal or a final proposal?
23 A. I don't recall. I don't see any notation
24 on it either way and I don't know which it was.
25 Q. Do you know whether this proposal has ever
290
1 been accepted by any entity to fund the research?
2 A. Honestly, I don't remember. You know,
3 again it's been over a year probably since I've -- or
4 close to a year. Well, over a year since I've had
5 probably a chance look at it since I received it,
6 '91. I don't really remember what the content of it
7 is at this point, except, you know, in general that
8 it deals with phosphorus effects on the plant
9 community and animal community in the Water
10 Conservation Areas.
11 Q. With regard to the research that the Duke
12 Wetland Center is doing for the EPD has the EPD set
13 up any type of Technical Oversight Committee similar
14 to the committee we were talking about yesterday that
15 they did with regard to the IFAS research?
16 A. I have no knowledge of one.
17 Q. In the note on the first page of Exhibit
18 Number 25 there's also a reference, thanks you for
19 the Reddy and Koch reprints. What was being referred
20 to there?
21 A. I don't recall, but I'm sure it had to do
22 with scientific articles by Reddy, who's a scientist
23 at IFAS and Marguerite Koch who is on your staff of
24 the South Florida Water Management District and that
25 may be one article. It may be two. I didn't
291
1 remember. Evidently, it was an article that I had
2 that he was interested in and I sent him a copy of
3 it.
4 Q. You don't recall what those articles were?
5 A. No, I don't.
6 Q. Do you recall generally the subject matter?
7 A. I think it had to do with -- I mean it
8 dealt with wetlands and I think it may have dealt
9 with the same sort of general work in ecology that
10 Richard is dealing in. My guess is that somewhere in
11 our conversation, either personal or phone
12 conversation, I mentioned to him that I -- that I had
13 it and he mentioned, I don't have it; would you send
14 me a copy and I said sure.
15 Q. How often do you converse with the Duke
16 Wetland Center people?
17 A. Infrequently.
18 Q. Once a month?
19 A. No. Not that much.
20 (The document was marked Exb. No. 26.)
21 BY MR. NETTLETON:
22 Q. Dr. Dunckelman, we've handed you a document
23 that's marked as Exhibit Number 26, which consists of
24 a cover letter dated August 28, 1990 to Mr. Rackley
25 from Dr. Curtis Richardson and attached to that is
292
1 the enclosure entitled, Water Quality and the
2 Everglades: Options for the Future. Authored by
3 Curtis Richardson and Christopher Craft.
4 Have you seen the water quality document
5 that's attached to this cover letter before?
6 A. I don't recall ever having seen it, no.
7 Q. Did you ever have any conversations or
8 discussions with Dr. Curtis Richardson concerning the
9 contents of this particular document?
10 A. No.
11 Q. Have you ever had any conversations or
12 discussions with Dr. Richardson concerning the
13 potential adverse effects on crops or crop yields or
14 farming practices which would occur through
15 implementation of BMPs?
16 A. No. I've never had such conversation with
17 Dr. Richardson.
18 Q. The same with regard to Dr. Craft. Have
19 you had any such conversations?
20 A. No.
21 Q. Can you tell me what the Florida
22 Agricultural Information Retrieval System is? Do you
23 know what that is?
24 A. Yes.
25 Q. Can you tell me what it is?
293
1 A. It's a computer data base that IFAS
2 developed and I tend to look at it as being
3 information that the general public would want on
4 agricultural horticulture and they're -- it's on ROM
5 (sic) disks and you can either obtain the information
6 from those disks in a print out from a county agent's
7 office or you can actually buy the disks yourself to
8 retrieve the information.
9 Q. Is that available generally to the general
10 public?
11 A. I believe it is.
12 Q. Okay. Do you know what kind of information
13 is contained on the data base?
14 A. There's several different data bases for --
15 that, you know, for different crops.
16 Q. What kind of information is contained
17 generally in the system?
18 A. Well, I've only seen, you know, parts of
19 the data base. I've seen it demonstrated at seminars
20 at the Belle Glade Experiment Station and it's mostly
21 just general information and it's all the time being
22 built on and improved, so I imagine that in the
23 future it will become more and more specific.
24 Q. Are you aware of whether the data base
25 currently contains any information concerning BMPs
294
1 for phosphorus reduction?
2 A. I don't know one way or another.
3 Q. Do you know whether the -- any of the data
4 bases in the system contain any economic information?
5 A. I'm not sure.
6 Q. Have you ever seen any?
7 A. Again, my exposure to FAIRS has been very
8 limited. Mostly what I have seen is information on
9 horticultural crops, foliage crops, a little bit on
10 sugar cane where they were doing demonstrations of
11 the system in seminar settings.
12 Q. Does the Sugar Cane League subscribe to the
13 system? Do you have access to it?
14 A. We have access to it through the -- through
15 IFAS, but we don't actually subscribe to it and have
16 the ROM disks themselves.
17 Q. Do you have any intention to do any
18 additional work with regard to formulating opinions
19 for purposes of testimony in this case after today?
20 A. Well, I'm constantly reading new
21 information as it comes along and I'm trying to
22 follow the research that IFAS is doing through the
23 EPD so, yes, I do.
24 Q. What specifically do you intend to be doing
25 other than just reading the information?
295
1 A. Well, I would like to visit the sites where
2 Forrest and Del are working now and I'd like to make
3 contact with them to find out what -- any
4 developments they're finding and keep up with their
5 reports through the EPD mainly.
6 Q. Do you have any idea of a timetable of when
7 any additional data would be available through IFAS'
8 work which you might be able to utilize to formulate
9 additional opinions?
10 A. There are timetables established, but to
11 recall those at this time, I just don't have that
12 knowledge at the tip of my tongue.
13 Q. Can you give me just a general idea? Are
14 we talking months or years or somewhere in between?
15 A. I think we'll probably have some usable
16 information within a year. And as the project goes
17 on -- it is a planned five year project -- I'm sure
18 that information will become more and more reliable.
19 Q. Have you been asked to do any further work
20 as far as formulating opinions for purposes of
21 testifying in this case?
22 A. Besides the -- being asked to testify on
23 general agronomy of the crop, agriculture of sugar
24 cane and the BMPs, no, I have not. Those are the
25 specific areas where I was asked to concentrate as
296
1 far as my opinion.
2 Q. Is there anything in the ongoing research
3 that IFAS is or that anyone else is doing that you're
4 aware of that in any way will create or do you think
5 will create areas of opinion other than what you have
6 expressed here during the deposition?
7 Let me rephrase the question.
8 A. Thank you.
9 Q. Other than your opinions concerning the
10 risks and potential adverse effects of implementation
11 of the BMPs, specifically water management BMPs on
12 crop yields and crops, is there any other area of
13 testimony that you have been advised or you expect
14 you will be testifying with regard to in this case?
15 MR. STOTTS: Did you understand the
16 question? It's kind of long.
17 THE WITNESS: It was a little convoluted.
18 I think I did, but if you would, one more time,
19 please.
20 MR. NETTLETON: Okay.
21 THE WITNESS: Try to shorten it a bit.
22 MR. NETTLETON: I'll try.
23 THE WITNESS: Okay.
24 BY MR. NETTLETON:
25 Q. You have testified during this deposition
297
1 concerning your opinions on the potential risks -- or
2 risks and potential adverse effects on crops, crop
3 yields, farming practices relating to implementation
4 of the BMPs which are set forth in the SWIM Plan, is
5 that correct?
6 A. That's correct.
7 Q. Do you have any intention or have you been
8 requested by anyone to do any additional research or
9 analysis to offer opinions in any other areas?
10 A. Other than general sugar cane agricultural
11 and BMPs, no, I have not been offered (sic) to give
12 opinions, but I would like to say that within the
13 scope of general agriculture of the crop, there is a
14 lot of room there for opinion because it's a big
15 subject area.
16 Q. What opinions concerning agriculture of the
17 crop are you intending to provide in the final
18 hearing in this case?
19 A. Well, I don't know exactly what opinions.
20 I'm just telling you that it's a large area.
21 Q. You have not formulated any specific
22 opinions at this time that you specifically intend to
23 give at the final hearing?
24 A. I have not been asked to do that.
25 MR. NETTLETON: I have no further
298
1 questions.
2 (Thereupon, a recess was taken.)
3 (The document was marked Exb. No. 21.)
4 CROSS (John Dunckelman, Ph.D.)
5 BY MR. ROSENBERG:
6 Q. Dr. Dunckelman, I'm Robert Rosenberg. I'm
7 an Assistant United States Attorney and I'm going to
8 ask you some questions. If you don't understand my
9 questions or they're poorly formed or spoken too
10 quickly or for some reason you can't answer the
11 question, please tell me and I'll try to reconstruct
12 the question. It's also my intention not to
13 duplicate what may have already been asked of you,
14 but I may ask some questions in the same area and
15 they may sound similar. I'll try and not duplicate,
16 however.
17 Sir, define an agronomist for me.
18 A. An agronomist is a scientist who deals with
19 the management and production of field crops.
20 Q. Now, you testified in response to some of
21 Mr. Nettleton's questions that you did not think the
22 research was completed for the BMP program to be
23 implemented. Am I correct?
24 A. Would you repeat that, please. I kind of
25 drifted for a minute.
299
1 Q. I thought you testified in response to some
2 of Mr. Nettleton's questions that the BMP research
3 had not been completed to your satisfaction in order
4 to implement a BMP program.
5 A. That's correct. It needs to be implemented
6 on a full scale field experiment, not just in small
7 plots.
8 Q. Okay. Is that -- if we look at the nine or
9 so BMPs that Bottcher and Izuno have suggested, is
10 that true for all nine?
11 A. I think, depending on which specific one
12 you're talking about, there may or may not be more
13 use of one than the other, so -- but in general there
14 probably needs to be more research on every one of
15 them.
16 Q. Is it your position, then, that BMP
17 programs should not be instituted until the research
18 is completed?
19 A. No. That's not my opinion.
20 Q. When would you institute a BMP program,
21 then?
22 A. The growers in the EAA are doing it now.
23 We've said publicly that we're going to do it because
24 we're wanting to reduce phosphorus coming off our
25 farms and so we're willing to take the risk of
300
1 instituting the IFAS BMPs and our own BMPs including
2 our pump BMP now to reduce phosphorus. We're willing
3 to take that risk. We would like to have had more
4 research, but we don't.
5 Q. That's my question. Which BMPs is there a
6 risk that you can define for me?
7 A. Well, again, the main one has to do with
8 water management on the farm.
9 Q. Other than the water management BMPs is
10 there any risk for non-water management BMPs for
11 implementing those immediately?
12 A. There may be some. But I think it's less
13 than for the water management BMP.
14 Q. When you say there may be some, can you
15 quantify or define what that is?
16 A. For -- again, when you look at banding
17 fertilizer, you've got to realize the whole objective
18 of doing that is to reduce the total amount of
19 fertilizer that you're putting out. So when you do
20 that, you are running a risk of making a mistake and
21 losing some yield without the proper research on
22 calibrating the soil tests and equating that to the
23 yield, final yield of the crop over a long cycle.
24 Q. Has the Sugar Cane League, to the best of
25 your knowledge, done any previous research on banding
301
1 prior to the BMP suggested by Bottcher and Izuno?
2 A. In the three years that I have been at the
3 League in the management of our Agricultural Research
4 Program, we have not done any experiments in banding
5 of fertilizers in sugar cane.
6 Q. Do you know if anybody else who's a member
7 of the League has done experiments in that area?
8 A. I don't know of any personally.
9 Q. Was this a new thought, as far as you're
10 concerned, or as far as your company is concerned?
11 A. No. Banding fertilizer is a very well
12 established practice in agriculture.
13 Q. So, despite the fact that it's a well
14 established practice, neither the League nor any of
15 its constituents has done any work in it, is that
16 true?
17 A. It's not -- it's a well established
18 practice in agriculture, meaning in general, not
19 necessarily in the EAA on sugar cane. I believe that
20 in the past the more common practice for sugar cane
21 was to broadcast fertilizers, not band them. Only
22 recently farmers have begun to change that. It
23 involves equipment changes too. A lot of
24 fertilization is not -- is custom applied.
25 Q. Sir, how long have you been in Florida?
302
1 A. I took this job in 1989.
2 Q. And so you moved to Florida in 1989?
3 A. Yes. I moved to Florida from Louisiana in
4 1989.
5 Q. Is that to Clewiston where you live now?
6 A. Yes.
7 Q. Your current employer is Florida Sugar Cane
8 League?
9 A. Yes, sir.
10 Q. And are you in the same job now that you
11 were in in 1989 with Florida Sugar Cane League?
12 A. My duties are essentially the same. My
13 title has changed.
14 Q. What are your duties?
15 A. My duties are to oversee our Agricultural
16 Research Program and to oversee the Florida Sugar
17 Cane League's effort in the cooperative sugar cane
18 plant breeding program that the USDA, IFAS and the
19 League share responsibilities in.
20 Q. Who is your supervisor?
21 A. Mr. Andy Rackley.
22 Q. What is his title, sir?
23 A. His title is Vice President and General
24 Manager.
25 Q. And do you have people that work under you?
303
1 A. Yes, I do.
2 Q. And how many people?
3 A. I have one agronomist, professional
4 agronomist that works under me, but I don't have
5 direct supervision -- I don't have direct day to day
6 supervision over him.
7 Q. Who does?
8 A. Dr. Jim Miller.
9 Q. Let me back up for a second.
10 Can you tell me what the Florida Sugar Cane
11 League is?
12 A. Yes.
13 Q. What is it?
14 A. It's a not-for-profit trade association
15 that represents sugar cane growers and processors in
16 South Florida.
17 Q. How many employees does it have?
18 A. At present at Clewiston we have -- I'll
19 have to count. Let me think for a minute, please.
20 Seven employees at the Clewiston office and I believe
21 we have three others, plus six at Canal Point.
22 Q. I'm talking about the entire Florida Sugar
23 Cane League. Would that be only 16 employees?
24 A. Did you add the numbers that I just gave
25 you? That's correct, how many staff members the
304
1 Florida Sugar Cane League has.
2 Q. Is there a head or a president of the
3 League?
4 A. Yes, there is.
5 Q. Who is that?
6 A. But he's not a member of our staff. He's a
7 member of our Board of Directors.
8 Q. Who is that?
9 A. His name is Jose Pepe Fanjul.
10 Q. So the League has 16 staff members?
11 A. To the best of my knowledge right now with
12 the numbers that I just gave you, if that adds -- if
13 that's the addition product, that's correct.
14 Q. Under 20?
15 A. Yes, I would say.
16 Q. Would that be fair to say under 20 staff
17 members?
18 A. That's correct.
19 Q. Okay. And who belongs to the Florida Sugar
20 Cane League?
21 A. We have a membership that's composed of
22 growers and processors from both -- from different
23 corporations and independent growers.
24 Q. Talking about the Florida Sugar Cane
25 League, can you tell me who in the EAA belongs to the
305
1 Florida Sugar Cane League?
2 A. I can't provide you a list from my head
3 right now, no, I cannot.
4 Q. Do you know any of them?
5 A. Yes, I do. Of course.
6 Q. Who are they?
7 A. U.S. Sugar Corporation belongs to the
8 Florida Sugar Cane League. Flo-Sun Corporation
9 belongs to the Sugar Cane League. Those two
10 companies alone represent about 75 to 80 percent of
11 the acreage in the EAA --
12 Q. Okay.
13 A. -- of sugar cane.
14 Q. Who's on the Board of Directors of the
15 Sugar Cane League?
16 A. We have a board composed, I believe, right
17 now of 16 members.
18 Q. Do you know any of them?
19 A. Yes. I know them.
20 Q. Who are they?
21 A. Nelson Fairbanks is Chief Executive Officer
22 of United States Sugar Corporation. Jose Pepe
23 Fanjul, Alex Fanjul, Andreis Fanjul, Mr. Frank
24 L. Polhill, Mr. Joe Marlin Hilliard.
25 Q. What are their affiliations?
306
1 A. Mr. Hilliard is independent grower. He
2 owns his own company. It's called Hilliard Brothers
3 of Florida.
4 Q. Mr. Polhill?
5 A. Mr. Polhill is Senior Vice President of
6 Agriculture for United States Sugar Corporation.
7 Q. Who else is on the board that you know of?
8 A. Mr. Robert Buker. I know them all. I'm
9 just having trouble recalling all of their names
10 right now. It's hard to do without a list of these
11 people. I'm sure that we could provide you a list if
12 that's required.
13 Q. How often does the board meet to the best
14 of your knowledge?
15 A. Our board right now is meeting quarterly.
16 Q. When is the last time the board met?
17 A. I don't remember the exact date. It's been
18 within the last -- I think it was this month early,
19 the first week of this month.
20 Q. Were you present at the meeting?
21 A. Yes, I was.
22 Q. Where did the meeting take place?
23 A. The meeting took place in the board room of
24 our -- of the Florida Sugar Cane League headquarters
25 at Clewiston.
307
1 Q. How long did the meeting take? What was
2 the duration of the meeting?
3 A. That particular meeting, I believe, was
4 recessed at lunch which was about noon or shortly
5 thereafter.
6 Q. Did it start at 9:00?
7 A. It started at -- I believe it started at
8 10:00 actually.
9 Q. Were there minutes taken of this meeting?
10 A. Yes, there were.
11 Q. And what was discussed at that meeting, if
12 you could tell me?
13 A. Well, in general, we have a --
14 MR. STOTTS: Counsel, I'm going to object
15 to relevance here. This has nothing to do with
16 the testimony that Dr. Dunckelman's been offered
17 for. It has nothing to do with him as an
18 agronomist or as an expert on best management
19 practices and I don't understand the line of
20 questioning.
21 MR. ROSENBERG: Well, are you directing him
22 not to answer?
23 MR. STOTTS: Did you hear me do that?
24 MR. ROSENBERG: No, sir.
25 MR. STOTTS: All right. I'm not directing
308
1 him not to answer. I'm merely objecting.
2 You can answer if you can.
3 THE WITNESS: Would you repeat the
4 question, please.
5 BY MR. ROSENBERG:
6 Q. Subject matter of the meeting.
7 A. We discussed things that affect the sugar
8 cane industry. I mean there can be a list of those
9 and each -- each staff member who heads a department
10 like myself, gives a report on the status of their
11 department and what's going on with them and so I
12 give a set of what I generally refer to as ag
13 research notes.
14 Q. Are these reports in writing?
15 A. Yes. They are in writing.
16 Q. And earlier in response to a question that
17 counsel asked you you told us that $30,000 was paid
18 to IFAS in order to keep Forrest Izuno's research
19 unit going. Is that correct?
20 A. Yes. To keep it intact --
21 Q. Okay.
22 A. -- because he was facing budget cuts.
23 Q. Okay. What where did that $30,000 come
24 from?
25 A. That came from the Florida Sugar Cane
309
1 League members.
2 Q. Okay. And was that an individual
3 assessment or was that from general funds if you
4 know?
5 A. I don't have direct authority and knowledge
6 over how those assessments are raised. I can only
7 tell you how assessments are raised within the
8 Agricultural Research Program. There are several
9 different methods of raising funds within the League
10 and I'm not familiar with all of them.
11 Q. Now, is it common for you to -- other than
12 the board meetings, to correspond with or communicate
13 with members of the board?
14 A. I do that to a limited extent.
15 Q. Did you communicate or discuss your
16 opinions or any of the testimony you have given here
17 today with any of the members of the board?
18 A. I don't recall having sat down ever for
19 that specific purpose with any members of our board.
20 Q. Did any of them call you regarding your
21 proposed testimony or your proposed opinions or your
22 participation in the lawsuit?
23 A. No, they have not.
24 Q. What's Mr. Rackley's role?
25 A. Mr. Rackley is vice president and general
310
1 manager, as I stated earlier, and in that capacity he
2 serves as the lead executive on the staff of the
3 Florida Sugar Cane League and he controls all our day
4 to day operations and he is the main interface
5 between our board of directors and staff.
6 Q. I believe counsel asked you whether you
7 ever had the opportunity to comment on any of Curtis
8 Richardson's reports or drafts or reports or drafts
9 generated by Curtis Richardson. Do you remember
10 that?
11 A. That's not the way I remember it being
12 asked.
13 Q. Well, let me ask that question. Did you
14 ever comment on any of the reports or drafts that
15 Curtis Richardson generated?
16 A. Yes. At one time I did.
17 Q. Okay. When was that?
18 A. That was when I first came on board in 1989
19 and Curtis, I believe at that time, was doing some
20 work specifically for the League.
21 Q. And what documents did you comment on?
22 A. I don't recall now because it's been so
23 long ago and those -- incidentally, at that time, it
24 was not my personal responsibility to oversee those
25 projects, so I was only given a copy of the report as
311
1 a courtesy.
2 Q. What projects were they, do you know?
3 A. I -- at this time, I can't recall
4 specifically what they were about. I do recall
5 having looked at one of Curtis' drafts a long time
6 ago and being offered a chance make comments and
7 review it.
8 Q. Does your role with the League contemplate
9 any liaison duties with Curtis Richardson and/or Duke
10 Wetland Center regarding any subject matter?
11 A. No, it does not.
12 Q. When is the last time you had conversation
13 with any of the Duke Wetland's people?
14 A. The last one of them I saw and had occasion
15 to speak to was Bob Johnson. It was only in passing
16 at some public meeting and I just remember telling
17 him hello. How are you? It's been about three
18 months ago and it may have been at the District. I
19 don't recall specifically where it was.
20 Q. And before that it was?
21 A. Before that, you know, I have occasionally,
22 as I've stated earlier, stopped at the Wetland Center
23 office on my way back from Palm Beach to say hello
24 and just visit briefly with Russell Rader.
25 Q. Do you furnish any information to the Duke
312
1 Wetland Center or route any of your documents to them
2 or through them?
3 A. Well, as was noted on one of the earlier
4 documents that we looked at, I have on occasion sent
5 Richard, for instance, that Reddy and Koch report,
6 but other than that, it's not a routine thing that I
7 do and I don't recall ever having sent any other than
8 that.
9 Q. Did you ever see a tape of Dr. Polopolus'
10 presentation?
11 A. No, I have not.
12 Q. Did you ever discuss Dr. Polopolus'
13 presentation with anybody who either witnessed the
14 presentation or who saw the tape?
15 A. Yes.
16 Q. Who was that?
17 A. That was Mr. Rackley my boss.
18 Q. And what was that conversation about?
19 A. Well, he just told me that Leo made the
20 presentation before the Funding Committee meeting at
21 the Dolly Hand Center in Belle Glade within the last
22 few months and he did a very good job, was his
23 comment; that he got up and he was very impressive.
24 Q. Regarding the subject of yield risk, did
25 you ever furnish any information or opinions or views
313
1 to anybody from the Peterson group?
2 A. Yes, I did.
3 Q. And when was that?
4 A. In the early stages of our conversations
5 with Dr. Johns at a meeting with her and Peterson
6 representatives I did make comments regarding that.
7 Q. And you don't have -- do you have a date on
8 that?
9 A. No, I don't. I don't have a specific date.
10 It would have been early on after our first meeting
11 with Dr. Johns.
12 Q. Do you recall what you said or what the
13 substance of the conversation was?
14 A. Yes, I do. I recall telling Dr. Johns, in
15 my opinion, it might be a good idea to factor in some
16 risk into the implementation of BMPs and I suggested
17 doing it as a number within a given range of 10 to 25
18 percent is what I think my suggestion was. It was
19 within that range.
20 Q. What was the basis of your 10 to 25
21 percent?
22 A. Strictly just my opinion from my experience
23 with the crop and from experimentation that I had
24 done with the risk of having elevated water tables
25 and I suggested that that may be a good thing for her
314
1 to do, to factor that in, so that if in deed the --
2 there is a risk, that she can show if you have a 10
3 percent increased risk, this is what it does to the
4 economics of growing the crop. It was made as a
5 suggestion to her as a way to account for a possible
6 risk.
7 Q. Other than your suggestion of 10 to 25
8 percent, do you know of anybody else who supports
9 that figure?
10 A. There may be other people who support it,
11 although I've never discussed it in any kind of
12 detail with anyone.
13 Q. Do you know of anybody at the League that
14 supports that figure other than you?
15 A. Well, besides myself, there's only
16 Mr. Rackley who might have an opinion on that and I
17 don't know what his opinion is.
18 Q. But you're the one who generated the 10 to
19 25 percent?
20 A. I may have been the one. I did, in deed,
21 tell Dr. Johns at that meeting where I was present
22 that that was a suggestion that I made. Now, whether
23 or not that suggestion was made to her again by
24 anyone else or whether it was made to her prior to my
25 making it to her, I couldn't tell you.
315
1 Q. And your 10 to 25 percent is based on
2 Exhibits 2 and 3 that we've seen here?
3 A. Well, partially.
4 Q. What else is it based on?
5 A. It's also based on my experience as an
6 agronomist and having worked with this crop for close
7 to 15 years.
8 Q. Do you know of any other agronomist that
9 shares that same view, 10 to 25 percent yield risk?
10 A. I've never asked any agronomists that I
11 know what their view is on the specific amount of
12 risk involved in implementing these BMPs.
13 Q. How did you get to 10 to 25 percent as
14 opposed to 2 to 5 percent?
15 A. This was a range that's based on my -- my
16 estimate based on my own experience.
17 Q. Was there any follow up by either Peterson
18 or Grace Johns regarding that 10 to 25 percent
19 figure?
20 A. That I don't know because, quite frankly, I
21 did get a copy of Dr. Johns' final report. I don't
22 think she included it in the report, but I haven't
23 examined the report carefully enough to be able to
24 tell you definitely that it was not included or was
25 included.
316
1 Q. Did anybody else contact you, write you a
2 memo or any document saying where did you get the
3 figure from and how do you substantiate it?
4 A. To the best of my recall right now, I don't
5 think so.
6 Q. Did Dr. Polopolus ever contact you to
7 verify the 10 to 25 percent range figure?
8 A. No. Again, as I've stated earlier to
9 Mr. Nettleton, I've never had any conversations with
10 Dr. Polopolus other than to have met him in the
11 elevator at the District.
12 Q. But no written communication --
13 A. No. None.
14 Q. -- from him or from anyone regarding this
15 figure? Anyone being any economist, any scientist,
16 meaning anyone.
17 A. To the best of my recall at this time, no.
18 Q. You testified in response to counsel's
19 question regarding correlation numbers and I believe
20 you said -- and tell me if I have it right. It's not
21 my intention to trick you, it's my intention to get
22 it right. You said, I believe, that correlation
23 numbers in research work between 50 to 70 percent is
24 strong.
25 A. I don't believe that's exactly what I said.
317
1 Q. Tell me what you said.
2 A. What he asked me, as I recall, was what do
3 you consider a strong correlation? Do you consider
4 90 or a .90 correlation strong? And what I believe I
5 told him was that point -- that 90 percent
6 correlation coefficients were rare in agricultural
7 field experimentation and that 50 to 75 percent was
8 considered fair to strong.
9 Q. What does that mean, fair to strong, when
10 you get that correlation of 50 to 70 percent?
11 A. That means that there's a good chance that
12 there is truly an association, a positive
13 association.
14 Q. Is that generally accepted throughout
15 science, that 50 to 70 percent correlation? The
16 formula you've just given me, is that generally
17 accepted throughout science?
18 A. Yes. I think it is. That's a good
19 question for a better statistician than I am, but
20 correlation coefficients of 50 to 75 generally show
21 there's a good association.
22 Q. You responded to a question and tell me if
23 I have it right again. You used the phrase, "wet
24 feet."
25 A. Yes.
318
1 Q. What did you mean by, "wet feet"?
2 A. Well, I was -- it's kind of a slang
3 acronym, but basically what I meant was a saturated
4 or overly wet root zone.
5 Q. For, in this case, a sugar cane plant?
6 A. Correct.
7 Q. Okay. Regarding a sugar cane plant in
8 general, or the plants that are grown in the EAA, how
9 deep are they rooted?
10 A. It depends on what we're talking about, on
11 what plant you are talking about. There's a lot of
12 different vegetables grown. Sugar cane is grown and
13 there's a lot of different varieties of sugar cane
14 that we grow. I'm sure if -- and I don't know if
15 they have been -- if the rooting characteristics of
16 the approximately 40 different varieties that we grow
17 were looked at, we probably have quite a bit of
18 variance in the root volume and the depth of rooting
19 among those varieties.
20 Q. Did they have quite a variety? Is there a
21 long range, short range to their roots?
22 A. Well, sugar cane roots on mineral soils
23 have been recorded as deep as say six feet.
24 Q. What about in muck soils?
25 A. On muck soils they tend to be more shallow
319
1 rooted and that's generally because you have higher
2 water tables.
3 Q. When you say shallow rooted what are we
4 talking about?
5 A. Again, I think that's a question to be
6 answered by actually doing some research and looking,
7 uprooting, digging plants up out of the ground,
8 measuring, weighing the root volume and actually
9 trying to determine the actual root depth by cutting
10 a profile into the soil and examining that. I'm not
11 aware of any research that's been done in that area
12 on muck soils. There may be some. I haven't done
13 any personally.
14 Q. Now, is there any depth that muck soils
15 must be in order to accommodate a sugar cane plant,
16 any minimum depth?
17 A. As far as I know, there's a great deal of
18 variability in that and I've seen places where sugar
19 cane is growing on very deep muck and where it's
20 growing on very shallow muck and the yields are good
21 in both places.
22 Q. When we talk about shallow muck, how deep
23 is that shallow muck?
24 A. I have seen mucks that are as shallow as 4
25 to 6" personally to rock.
320
1 Q. So would it be fair to say, then, sugar
2 cane could grow with a root system of 4 to 6" and
3 give a good yield?
4 A. Well --
5 Q. Would that be fair?
6 A. No. It wouldn't be fair. Because there
7 were some overriding factors in the particular area
8 where I looked at this shallow muck cane. There was
9 a loose marl underlay and it was very possible and
10 probably probable that that cane had actually rooted
11 itself into that rock structure, into the marl. It
12 may have been rooted deeper than that top horizon of
13 muck.
14 Q. Is there any place where I could find the
15 answer to my question, that there's been experiments
16 on that or there's been test results or reports on
17 that?
18 A. Not that I know of. You know, there may be
19 some private research within the companies but,
20 again, I'm not privy to that and some of it may or
21 may not be published. I don't know how much has been
22 published.
23 Q. The depth of the roots and the minimum
24 depth of the soil in order to support a cane plant --
25 A. Right.
321
1 Q. -- you are not familiar with that?
2 A. No. I have not seen any public agency
3 research on that issue.
4 Q. Okay. Sir, is there research or are you
5 familiar with research on flood tolerant sugar cane?
6 A. Yes. There is a small amount that I'm
7 familiar with.
8 Q. And --
9 A. Let me -- may I rephrase that? When I say
10 a small amount, I'm saying that I think there is only
11 a small amount of research that's been done on that
12 actual problem in the EAA and I believe I'm familiar
13 with the majority of it that's been done recently.
14 Q. Could you tell me what that research is,
15 who did it?
16 A. Yes. We've discussed that earlier and
17 that's -- I'm referring to the research by Deren,
18 Porter, Snyder and Miller.
19 Q. Is that the only research that you know of
20 about flood tolerant sugar cane?
21 A. At this point, that's the only published
22 research work that I have in my possession concerning
23 the flood tolerance of the current germ plasm in the
24 EAA, the flooding.
25 Q. Is there an ongoing program at the League
322
1 regarding research or testing for flood tolerant
2 sugar cane?
3 A. We had research proposals presented along
4 those lines and right now we're looking at the effect
5 of flooding on germination of seed cane.
6 Q. But the answer to my question, is there --
7 is there ongoing research right now at the League
8 regarding flood tolerant sugar cane?
9 A. It's being done by IFAS and it's sponsored
10 by the League.
11 Q. When did that research start, do you know?
12 A. That research, I believe, began in 1992 and
13 we don't have results of that work yet in writing.
14 Q. Was there any research prior to '92 that
15 the League or any of its constituents, constituent
16 entities were involved in?
17 A. There may be. I have not personally seen
18 it nor have I been personally associated with that
19 research.
20 Q. Does the League have any program going on
21 now regarding the control of phosphorus? Or when I
22 say control of phosphorus, the reduction of
23 phosphorus?
24 A. I'm not fully aware of exactly what we may
25 be doing in that area because, again, that's not my
323
1 area of responsibility.
2 Q. Who would know that?
3 A. At the present time, if Mr. Rackley --
4 Mr. Rackley would be the only one that would probably
5 know it at the League staff and know it in full.
6 Q. That's something that's outside of your
7 bailiwick?
8 A. Yes. My responsibility is the Agricultural
9 Research Program, which is -- and that program has
10 been geared since its inception many years ago toward
11 a traditional, you know, crop protection, entomology,
12 plant pathology, plant breeding, those areas. We
13 haven't dealt with ecological or environmental issues
14 very much, although we realize that those things
15 could have an affect on us in the future.
16 Q. So your programs have dealt with rodent
17 control, pests, stem rot, rust, diseases?
18 A. That's correct.
19 Q. Matters like that?
20 A. Yes, sir.
21 Q. Been doing that for a number of years?
22 A. Yes, we have.
23 Q. But your program regarding the control of
24 phosphorus you don't know about?
25 A. No. At this particular time the
324
1 Agricultural Research Program that I oversee is not
2 doing any research in that area.
3 Q. Okay. Do you know how long phosphorus has
4 been used as a fertilizer in the EAA?
5 A. Oh, I'm not positive when it was first
6 applied. But I'm sure -- you know, they have been
7 farming in the EAA since the area was drained, so I'm
8 sure that shortly after the initial plantings of
9 sugar cane were made at the turn of the century, they
10 started fertilizing with phosphorus.
11 Q. Past several decades, would that be fair to
12 say?
13 A. Absolutely.
14 Q. Do you know how much phosphorus per year
15 say for 1990 or 1991 was used as fertilizer in the
16 EAA?
17 A. No, I don't.
18 Q. Who would know that?
19 A. I imagine that fertilizer distributors may
20 have an idea of their sales, but other than that, I
21 don't know.
22 Q. And do you know how much phosphorus was
23 taken up in the crops that were generated from the
24 EAA in any of those years?
25 A. I don't personally know those numbers,
325
1 although they have recently been calculated by
2 Dr. Izuno and IFAS in the work that he did for the
3 District and that can be calculated.
4 Q. You say Mr. Rackley would know about
5 specific programs to control or reduce phosphorus or
6 testing programs?
7 A. Mr. Rackley has complete oversight on all
8 budgetary matters at the League, so he would be aware
9 of any project we were funding because he would have
10 knowledge of funding in all areas of the League
11 budget.
12 Q. Are you familiar with any of the research
13 going on to increase milling efficiency?
14 A. No. We haven't done any of that in our
15 program, in the ag research program.
16 Q. Who would know about that?
17 A. I don't know. I think that would probably
18 be a company issue more than anything else.
19 Q. The League is not -- generally would not be
20 concerned about milling efficiency, plant --
21 A. No. That's a very specialized area of
22 research and we don't have people on staff that deal
23 in that particular area of technology.
24 Q. What about increased sugar cane quality in
25 the sense that the plant would yield more sucrose or
326
1 yield more usable matter?
2 A. Yes. We're directly involved in that
3 through the ag research program in our association
4 with the Cooperative Plant Breeding Program.
5 Q. Is that in your bailiwick?
6 A. Yes, it is.
7 Q. And what is going on in that area now, do
8 you know?
9 A. Yes. There's a plant breeding effort, a
10 long term plant breeding effort that the United
11 States Department of Agriculture has had at Canal
12 Point, Florida. That station was established in 1919
13 and they have been hybridizing plants and looking for
14 increased yield, disease resistance and all the other
15 desirable factors that you want to select for in
16 sugar cane for many years and the majority of the
17 varieties of sugar cane cultivars or cultivated
18 varieties grown in the Everglades in the ag area come
19 from the work of that station. And that program is a
20 cooperative program that IFAS participates in and
21 that the Florida Sugar Cane League participates.
22 Q. In terms of plant yield --
23 A. Yes.
24 Q. -- has there been a trend in the last five
25 years or so, do you know?
327
1 A. Five years is a short amount of time to
2 talk about trends in yield for sugar cane.
3 Q. Let's use a ten year period.
4 A. There's a ten year period from the time you
5 make a cross until you get a plant out of that cross,
6 so the generation from seed -- initial seed to the
7 final plant material and the final release of a
8 variety is a long period. So when you talk about
9 terms of increases through breeding within a five
10 year period, you are only talking about half the
11 generational cycle. So what we tend to look at in
12 trends in sugar cane is more like a decade or 15
13 years, say.
14 Q. Can we tell now whether a given acreage is
15 producing more plants and whether those plants are
16 producing more usable yield?
17 A. Well, as a plant breeder, I can tell you,
18 first of all, the genetics of sugar cane is very
19 complicated and sugar cane breeding is based on
20 producing a very large number of -- initial number of
21 plants in the first population. We start with
22 selection numbers that approach 100,000 individual
23 plants from many different crosses and then we go in
24 and look for -- look at those individuals and make a --
25 say a 10 to 20 percent selection based on type and
328
1 plant those out and when you start actually -- when
2 you get it to the point where you're able to analyze
3 yield increases, you have to start vegetatively
4 propagating that plant and look at it in successively
5 larger plots and replicated tests. When we get to
6 the final replicated test field stage in sugar cane
7 variety development we're only looking at 10 to 12
8 varieties from that initial population of 100,000
9 plants. Progress is difficult to make and it's very
10 slow and we haven't been able to take advantage of
11 recent biotechnical advancements because of the
12 complicated genetic nature of the crop. We're still
13 having to rely on the traditional methods of plant
14 breeding to get there, so the progress is not as fast
15 as we would like it to be, but if you look back over
16 the hundred years that we've been, or close to a
17 hundred years that we've been growing sugar cane in
18 Florida, yes, we have had increases in yield. Most
19 plant breeders that I know and myself included will
20 tell you that because we've been relying on this
21 traditional method of plant breeding for over a
22 hundred years that we are starting to approach, we
23 think, a plateau in the amount of progress that we're
24 going to be able to make in a yield, especially of
25 tons of cane per hectare.
329
1 Q. But you are not familiar with any
2 information regarding a given acreage, how much more
3 it's producing in terms of plants and how much more
4 the plant is producing in terms of yield in the last
5 five or ten years?
6 A. I still don't quite follow your reasoning
7 or your question there.
8 Q. Let me back up.
9 You're not familiar with any numbers
10 regarding given acreages, the same plots, in that
11 those plots are producing more plants currently than
12 they were say five or ten years ago and those plants
13 have a greater yield than they did five or ten years
14 ago? You're not familiar with any of those numbers?
15 A. I don't think such numbers exist on a one
16 to one comparison basis looking at -- there's a lot
17 of variability there. We have, again, over 40
18 different clones or cultivars, cultivated varieties
19 that we can grow right now.
20 Q. But you are not familiar with any numbers
21 that would show a recent production, '90-'91 as
22 opposed to say '86-'85?
23 A. For individual parcels or plots of land
24 fields?
25 Q. That's right.
330
1 A. No. No.
2 Q. Okay. You don't know if such information
3 exists?
4 A. Not within Florida Sugar Cane League.
5 Q. In response to counsel's questions
6 yesterday you used the term, "prolonged flooding"
7 when you were talking about the flooding problems and
8 what they cause. What do you mean by, "prolonged
9 flooding"?
10 A. Well, I mean I was referring to the
11 duration of the time that the water is standing and
12 causing the effect.
13 Q. And is there any formula regarding how long
14 that duration would have to be before these bad
15 things happen?
16 A. On sugar cane right now we don't have a --
17 any kind of specific formula to calculate that and,
18 again, the reason for that is there are just too many
19 variables involved. The major one being varieties.
20 Q. In response to counsel's questions
21 yesterday you responded -- and tell me if I have it
22 right again -- that regarding the BMPs you would in
23 effect pick and choose some, pick and choose others
24 and create a package because you couldn't do
25 everything at once?
331
1 A. That's correct.
2 Q. Okay. If you were asked to pick and choose
3 a package that you could do now, that would cause the
4 minimum disruption to the farmers or to the plants,
5 and yet produce the greatest chance to reduce
6 phosphorus, what would you have in that program?
7 A. Well --
8 Q. Has anybody ever asked you to confront that
9 question?
10 A. No, they have not.
11 Q. Okay.
12 A. But right now the --
13 MR. STOTTS: Counsel, are you asking him
14 whether there's been -- whether the League has
15 some recommended menu or are you asking him just
16 hypothetically what he might --
17 MR. ROSENBERG: I'm not asking him anything
18 about the League having a recommended menu. He
19 responded yesterday that you couldn't have all
20 the BMPs at once. You'd have to pick and choose
21 different packages. Is that correct?
22 THE WITNESS: That's correct.
23 BY MR. ROSENBERG:
24 Q. I'm asking you to choose a package that
25 would do two things. It would have the greatest
332
1 chance of reducing phosphorus, but it would also have
2 the least harm caused because of water table or
3 whatever reason to the farmers. I wanted you to
4 produce that package for me.
5 A. Unless you tell me what the variables are I
6 can't tell you that.
7 Q. I'm telling you what the nine IFAS --
8 A. See, you are not telling me --
9 Are you growing vegetables? Are you
10 rotating rice?
11 Q. I'm talking about cane and if you wish you
12 can rotate rice in there.
13 A. But, again, if you're just talking about
14 cane, there's still too many variables involved for
15 me to tell you that because it depends on those
16 variables. Depends on the soil type. It depends on
17 how many pumps you've got on your canal structure; on
18 your particular operation as a farmer, how big it is,
19 how small it is, who you're next door to. There are
20 a lot of variables. For me to tell you what the best
21 thing to do for sugar cane, I can't tell you because
22 there are just too many variables involved.
23 Q. But each farmer would know what variables
24 confronts him?
25 A. Each farmer should know what variables or
333
1 have a good idea of what some of those variables are
2 that are important to his particular farm, yes.
3 Q. Would there be any need to wait for each
4 farm, once it knows its own variables, what to pick
5 off the menu here, what set of BMPs it would put in
6 place?
7 A. I think that's absolutely correct.
8 Q. My question was would there be a need?
9 A. I think -- you know, I'm not a farmer and
10 that's a difficult question for me to answer. If I
11 was a farmer I would definitely be looking at what my
12 particular circumstances were before I wrote which
13 BMPs I was going to implement on my farm to satisfy
14 the rule.
15 Q. Once you know that, is there any reason why
16 the farmer couldn't pick items off the menu now and
17 put them in place immediately?
18 A. I think farmers are doing that, to answer
19 your question. I mean they have had to resubmit a
20 permit that has a BMP plan in it. If they're not
21 going to implement those BMPs, then they're going to
22 be in violation of their permit. Growers are having
23 to do that is the answer to that question, I think.
24 Q. But it would be a combined -- a program
25 picking items off the menu would be singular to each
334
1 separate farm?
2 A. I haven't reviewed the permits to tell you
3 that. But my opinion is that they would be, yes.
4 They would be customized and individualized to that
5 particular farming operation.
6 Q. And if you or another expert were put on
7 that farm and given the variables could you construct
8 a program for each farm today?
9 A. Could I do it personally?
10 Q. Or some other expert who perhaps may have
11 greater expertise, could that be done today?
12 A. Well, I would think that -- again, first of
13 all, it has to be done. So obviously people are
14 doing it. So, to answer your question, could someone
15 do it? Yes, they could, because they are doing it.
16 Q. Earlier we talked about rice in open
17 response to counsel's questions and then your
18 suggestion here. Does using rice on fallow ground or
19 on an aquatic crop, does that have a beneficial
20 effect on the soil, do you know?
21 A. Yes, it does.
22 Q. What is that beneficial effect?
23 A. One of the biggest benefits that sugar cane
24 growers get from rotating into rice is they get the
25 benefit of the flood and that benefit has to do with
335
1 control of soil insects and weeds, mostly.
2 Q. So despite the fact that rice may be a
3 break even crop in the money sense --
4 A. Right.
5 Q. -- it may be beneficial in a farming sense?
6 A. Yes. That's absolutely correct.
7 Q. Regarding Exhibit 4 --
8 A. Okay.
9 Q. Let me go back to rice for a second.
10 A. Okay.
11 Q. About rice's beneficial effects, would it
12 be -- would you expect that using rice would have a
13 beneficial effect such that it would help yield risks --
14 it would help diminish yield risk?
15 A. Well, it certainly is viewed as a
16 beneficial practice from the standpoint of being a
17 good rotational crop with sugar cane. Exactly what
18 it would do to the risk I haven't really considered
19 that.
20 Q. Do you know if anybody's done that
21 research?
22 A. None that I have seen in writing and, as
23 far as I know, I mean the companies may be looking at
24 this, but I have no knowledge of exactly what they're
25 doing.
336
1 Q. Page 113. The question is -- my question
2 is what the cost of each of these BMPs would be. For
3 example, BMP number 3, wouldn't BMP number 3 not have
4 an increased cost for farmers but, in fact, be a
5 benefit to them?
6 A. I think there is some increased costs
7 associated with it and the reason I say that is
8 because it could mean equipment modifications.
9 According to Del and Forrest's BMP guidebook, they
10 have zone fertilizer application equipment may need
11 to be modified. Exactly what those costs are, I
12 can't tell you. But certainly any way of reducing
13 phosphorus in our drainage water, considering the
14 current rule and so forth, is a benefit to growers.
15 Q. Well, BMP 3 is to prevent fertilizer spills
16 and really programs to prevent the over luxurious use
17 of fertilizer. If that could be done, wouldn't that
18 reduce fertilizing costs?
19 A. First of all, number 3 has nothing to do
20 with over fertilization. It has to do with
21 preventing spills of fertilizer into bodies of water.
22 Q. Okay. Wouldn't something that would
23 prevent that permit the farmer to use -- buy less
24 fertilizer and use less fertilizer?
25 A. Well, again, that's a very difficult thing
337
1 for me to assess. I don't know how much fertilizer
2 is being spilled in the water, but I can only tell
3 you that peoples' opinion is generally that a little
4 bit of fertilizer can make a big difference in the
5 concentration in, for instance, a field ditch or farm
6 canal because we're talking very low concentrations
7 and fertilizer is a concentrated product.
8 Q. Well, Bottcher and Izuno said it could
9 reduce phosphorus losses by 0 to 15 percent. Now,
10 tell me if there's a direct correlation here. If
11 they're half right, that is it only reduces it by 7
12 1/2 percent, wouldn't that mean that farmers would
13 buy 7 1/2 percent less fertilizer?
14 A. No. Not necessarily. I don't think that's
15 what it means at all. Because what they're referring
16 to here is P losses. They're talking about losses in
17 the drainage water. I don't necessarily think that
18 the amount of fertilizer applied is directly
19 correlated in every way to that. I'm not sure that's
20 what they're talking about.
21 Q. Talking about preventing spills?
22 A. That's correct.
23 Q. When you spill something -- I'm not trying
24 to argue with you --
25 A. Yeah.
338
1 Q. -- but when you spill something, that's
2 useless, isn't it, in terms of fertilizing the
3 ground? That's something that's --
4 A. I agree with that.
5 Q. If you could have a practice that would
6 eliminate spills, something you get no benefit from --
7 A. Right.
8 Q. -- and if that benefit were quantified at 7
9 1/2 percent less fertilizer, it's not your statement
10 or it's your testimony that that doesn't mean the
11 farmer would buy 7 1/2 percent less fertilizer?
12 A. Well, I interpret that somewhat differently
13 because my logic and yours are slightly different on
14 this.
15 Q. Okay.
16 A. You're thinking that means there's going to
17 be -- of a total fertilizer applied, 7 1/2 percent of
18 it not spilled into the ditches. That's not what
19 this means.
20 Q. What's your understanding as to what that
21 means?
22 A. My understanding is that if you can prevent
23 spillage of fertilizer, you can cut back on the
24 amount of phosphorus leaving the soils of the
25 Everglades by as much as their range given here, 0 to
339
1 15 percent and I think what they're referring to is
2 concentration in water. And, again, fertilizer is a
3 concentrated product so if you put a little bit it
4 makes a big difference.
5 Q. Let me back up and ask a more general
6 question.
7 In terms of use of fertilizer, if these
8 practices say, one, two and three were used by the
9 farmer, would the net result of that be the farmer
10 would buy less fertilizer?
11 A. That's difficult for me to say. I've not
12 given any thought to actually trying to make those
13 calculations because, you know, I think what it would
14 mean is that there's going to be less -- less load or
15 less concentration in drainage water.
16 Q. I know that. But --
17 A. As far as how it relates directly to the
18 amount of fertilizer bought, I can't -- I can't make
19 that association without giving it a lot more thought
20 and calculation and that's probably something that
21 you need to ask Izuno and Bottcher themselves.
22 Q. All right. Let me direct your attention to
23 Exhibit Number 9.
24 A. Okay.
25 Q. You testified, I believe, that there was a
340
1 pre-presentation program that you were at before this
2 was presented to the board or to the District, there
3 was a pre-presentation program.
4 A. Yes, I did.
5 Q. Who was there?
6 A. Myself, Mr. Rackley, different individuals
7 from several of our major companies, all of whom I
8 don't remember and I believe Mr. Buker was there and
9 that's all I recall specifically.
10 Q. Was it more than one pre-presentation
11 program that you know of?
12 A. Not that I know of.
13 Q. How long did this pre-presentation program
14 take, do you know?
15 A. Probably somewhere on the order of one half
16 hour to actually go through this presentation.
17 Q. Who made the presentation?
18 A. That I don't recall.
19 Q. Were there any changes made by the other
20 people who were there who said maybe you ought to
21 change this or change that; any alterations made to
22 the scheme presented by Exhibit 9?
23 A. The best I can remember at this time was
24 that we were -- you know, there were people there and
25 the whole purpose of it was to comment on here and
341
1 suggest changes, but I didn't pay enough attention to
2 early drafts and the final product to be able to
3 recall or to tell you with any degree of accuracy
4 what changes exactly were made.
5 Q. So there were earlier drafts of deposition
6 Exhibit 9 that were circulated?
7 A. Well --
8 Q. Or aspects?
9 A. You have that in the plural and I don't
10 know how many there were. There may have only been
11 one. I'm sure we took the time to -- to finalize
12 this and polish it. The Florida Sugar Cane League
13 would not just throw a draft together and then go
14 public with it is what I'm saying. We definitely
15 looked at it.
16 Q. Do you recall having been presented with
17 any prior drafts of Exhibit 9 or any parts of it?
18 A. No, I do not. I don't have any in my
19 possession and I don't -- I don't recall having had
20 any in my possession, only having seen the
21 presentation before its presentation to the public at
22 some point.
23 Q. Do you recall having commented on any of
24 these sections, whether it was in the form of a draft
25 of Exhibit 9 or in the form of a memo or any
342
1 questioning: What do you think of this or what do
2 you think of that?
3 A. I don't recall any such formal comment that
4 I made.
5 Q. Did you -- at the pre-presentation, did you
6 suggest any changes, you personally?
7 A. My memory doesn't serve me well enough to
8 be able to tell you again with any degree of accuracy
9 at this time and, as far as I recall, I did not.
10 Q. Did you, at any time either before or after
11 the presentation, question the workability of any of
12 the -- any aspects of the program here?
13 A. I was not directly responsible for putting
14 this plan together, so I didn't feel it was my place
15 to make specific comments one way or another, so, no,
16 I did not.
17 Q. Do you know anybody else who did, who said
18 that something was unworkable there?
19 A. Well, again, because I was removed from
20 that to some extent, I didn't pay that much attention
21 to it and, again, all I can tell you is that we did
22 review it and at this time I can't remember back far
23 enough to give you all of the specifics on who was
24 there and what comments were made and what was taken
25 out or put in or what not. I just can't do that.
343
1 It's too long ago.
2 Q. I'm talking about either before, when the
3 drafts were presented or at the time of the
4 presentation, even subsequent to the presentation, do
5 you know of anybody who has said that aspect of the
6 strategy is unworkable or words to that effect?
7 A. Right now I just can't recall specifics of
8 that.
9 Q. Do you know of anybody who made the
10 presentation or anybody who put this together who at
11 any time had projections as to when these aspects of
12 the program or any aspects of the program could be
13 done?
14 A. Again, you're asking me for very specific
15 things on this plan and I just don't have that. I
16 just don't recall that much about it. I just know
17 that it was put together to present as an -- as the
18 League alternative to construction of the STAs and
19 that was done and I'm sure along the way that many
20 people commented on it and I was not that personally
21 involved in the development of this particular
22 document.
23 Q. Did the question ever come up whether
24 these, the strategies in this program could be done
25 immediately or what the soonest was that these
344
1 programs could be implemented?
2 A. That question was never posed to me.
3 Q. Or you never heard it posed to anybody when
4 you were present?
5 A. If it was, I don't recall ever having heard
6 it and, so as far as I'm concerned, no, the answer is
7 no for me.
8 Q. Do you know how the Environmental
9 Protection District, how that's funded?
10 A. It's funded by an assessment to the growers
11 themselves.
12 Q. Do you know what the amount of the
13 assessment is?
14 A. No. At this point, I don't know what it is
15 precisely.
16 Q. Do you know what the formula for assessment
17 is?
18 A. It's based on a per acre assessment.
19 Q. Everybody in the EAA antes up a certain
20 amount of money per acre?
21 A. I don't know if everybody in the EAA antes
22 up. I could safely say the majority of people in the --
23 or majority of acreage pays into the Protection
24 District.
25 Q. Do you know who selects the board?
345
1 A. No, I don't, actually.
2 Q. Do you know if the meetings are public?
3 A. Yes, they're public meetings.
4 Q. Is there an announcement?
5 A. Yes, there is.
6 Q. Are records kept regarding those meetings?
7 A. I believe so.
8 Q. Do you know where those records could be
9 found?
10 A. I don't personally know where they could be
11 found.
12 Q. Are those meetings transcribed in any way?
13 A. That I'm not entirely positive of.
14 Q. Is there -- do you know if the District
15 files reports some place with the State or with
16 agency or anybody?
17 A. They are a public agency. I would assume
18 that they are -- I don't know specifically what
19 they're doing because I've never tried to determine
20 that myself.
21 Q. Counsel yesterday asked you questions about
22 Dr. Patrick.
23 A. Yes.
24 Q. And I believe you said that Dr. Patrick had
25 done some experiments regarding mercury.
346
1 A. Yes.
2 Q. Did he make a report on mercury?
3 A. Yes, he did.
4 Q. And where could that report be obtained?
5 A. I imagine it would come under
6 Dr. Rosendahl's jurisdiction and I'm sure there's
7 probably a League copy of that report which was
8 presented publicly somewhere in the environmental
9 files.
10 Q. Do you know if anyone else has done
11 research on mercury in the EAA?
12 A. I have no firsthand knowledge of anyone
13 other than Dr. Patrick who's looked at the issue of
14 mercury for us.
15 Q. Have you ever heard about mercury -- is the
16 subject of mercury ever discussed in any of the
17 meetings at the League or with anybody you talk to
18 regarding soils and waters of the EAA? The mercury
19 content in soils and waters of the EAA, is that ever
20 discussed?
21 A. Yes.
22 Q. When that is discussed can you tell me the
23 content?
24 A. Well, of course, when we had Dr. Patrick
25 looking at the mercury content of sugar cane leaf
347
1 tissues, sugar cane stalk tissue, the gas and soils
2 in the EAA with respect to the amount of mercury
3 that's -- that emanates because of our open burning
4 practices in the crop and because of the mill
5 emissions. We, of course, discuss that.
6 Q. Do you know if there has been any soil
7 boring tests in the EAA and who's conducted those
8 tests in the last two years?
9 A. You know, Dr. Patrick looked at soil
10 samples that were -- that, in deed, I personally took
11 for him throughout the EAA and what was done there
12 was that we did not actually take borings, but I took
13 a sharp shooter shovel and dug a hole out and then
14 took scrapings off of a profile about 6 to 8" deep
15 and then composited that many samples from that field
16 into a bag, a plastic bag which was sealed and sent
17 to him for analysis on soils. But as far as actually
18 taking some sort of a -- you are talking about a core
19 itself?
20 Q. Core, yes.
21 A. No, I've never been associated with that
22 and I'm not aware of any that's been done.
23 Q. What about water sampling?
24 A. As far as?
25 Q. As far as mercury is concerned.
348
1 A. I've never been associated with any of that
2 Q. Do you know anybody who's done that?
3 A. I'm not aware of any right now.
4 Q. Who would know if there were other mercury
5 tests in the EAA or soil borings or water testing
6 regarding mercury?
7 A. For the Florida Sugar Cane League who would
8 know?
9 Q. Either for the Florida Sugar Cane League or
10 any of the constituents, entities of the Florida
11 Sugar Cane League.
12 A. I could only speak for the League, not our
13 individual constituents.
14 Q. I'm asking who would know. If you don't
15 know who would know?
16 A. I certainly don't know and, if anyone
17 within the League staff would have knowledge of that,
18 it would have been our Director of Environmental
19 Relations.
20 Q. And that is?
21 A. Dr. Rosendahl.
22 Q. Mr. Rackley, would he possibly know?
23 A. He may possibly.
24 Q. So the only mercury study you're aware of
25 is Dr. Patrick's?
349
1 A. That's correct.
2 Q. The only mercury research you're aware of
3 is Dr. Patrick's?
4 A. That's correct.
5 Q. Okay. Do you know how long it will take
6 for the limerock sorption experiment to be completed?
7 A. No, I don't. Not precisely.
8 Q. Is it your testimony that the turf
9 scrubbers are not a practical solution?
10 A. That was my feeling after having given it
11 some initial thought and seeing an early presentation
12 on it.
13 Q. Is that your feeling on it today?
14 A. Yes, it is.
15 Q. Do you know of anybody who has done the
16 testing of canals in the EAA regarding how much
17 phosphorus is in the sediment?
18 A. No. I'm not personally involved with that
19 research and I don't know, number 1, if we've done it
20 and, if we have, who has.
21 Q. Because one of the programs in the strategy
22 was to do something with the canals. You said the
23 phosphorus would settle down and it becomes a
24 particulate. I'm asking if anybody's done the
25 research to determine what number we're looking at
350
1 here?
2 A. You know, I would imagine that Hutcheon
3 Engineers did some of that, but, again, I'm not
4 personally -- I don't have personal knowledge of that
5 research other than to have seen, you know, some
6 presentations made and slides maybe at Hutcheon's.
7 Q. Is it your understanding that using the
8 pits to store the water would create seepage
9 problems?
10 A. I haven't given that any consideration
11 either.
12 Q. Is that a viable retention option as far as
13 your understanding?
14 A. That's a question for a hydrologist and
15 that's out of my -- that's out for me. I can't
16 answer that.
17 Q. On Exhibit 18 there was a meeting with the
18 Peterson people?
19 A. Yeah.
20 Q. Were there any notes of that meeting?
21 A. I think I stated earlier that I did have a
22 large file on it and I destroyed it a long time ago.
23 Q. Do you know if the Peterson participants in
24 those meetings were taking notes?
25 A. I don't recall if anybody had pencils out
351
1 and just exactly what notes they took.
2 Q. Do you recall the Peterson people
3 corresponding with you regarding those meetings?
4 A. Well, mostly as a facilitator. You know, I
5 had some telephone conversation notes that I would
6 keep about meetings we were trying to set up and they
7 would occasionally call and ask me for general
8 information that we might have from USDA, publication
9 or whatever.
10 Q. Did they copy you on correspondence?
11 A. The majority of the correspondence was
12 addressed to Mr. Rackley as I recall. I guess that
13 depended on what they were trying to accomplish.
14 Q. How do you happen to know that? Did you
15 see Mr. Rackley's correspondence regarding the
16 Peterson people?
17 A. Well, I was a facilitator, so most of --
18 not most, all the correspondence I kept my secretary
19 filed in a file that we had, you know, called the
20 PCLP file. That's how it was labeled. It's since
21 been destroyed except for the final report that
22 Dr. Johns of Hazen & Sawyer produced.
23 Q. Do you know if Mr. Rackley destroyed his
24 files?
25 A. I don't know if Mr. Rackley had a file.
352
1 Q. Could you tell me again, sir, you were
2 talking about the revised definition of BMPs and you
3 were talking about the profitability factor. Do you
4 recall that discussion?
5 A. I recall having been asked some questions
6 about that by Mr. Nettleton. I don't recall exactly
7 what my answers were.
8 Q. Do you recall Exhibit 12?
9 A. Yes.
10 Q. And do you recall discussing the definition
11 of: What are BMPs?
12 A. Yes.
13 Q. And you also recall Mr. Nettleton gave you
14 an earlier draft of that that did not have a second
15 paragraph to the -- in response to the question:
16 What are BMPs?
17 A. I remember him pointing out there was a
18 difference in the drafts.
19 Q. Do you remember talking about a revised
20 definition, one with a profitability factor?
21 A. Yes. I recall that having been the point
22 of the discussion.
23 Q. Now, can you tell me what you were talking
24 about when you said that -- that some BMPs have a
25 profitability factor or the BMPs that you were
353
1 talking about, that Bottcher and Izuno were talking
2 about when they made the board presentation didn't
3 have a profitability factor and others have a
4 profitability factor?
5 A. I don't remember making those sorts of
6 comments.
7 Q. That's exactly why I'm asking you the
8 question. What are you talking about when you talk
9 about a profitability factor?
10 A. I don't know. May I read exactly how the
11 passage is written so I can look at it?
12 Q. Could you do that?
13 A. What number is that?
14 Q. It's 12.
15 A. What page, please?
16 Q. Look at page 2.
17 A. Okay.
18 Q. Look at the second paragraph and read it.
19 It says, "It is important to note that the above
20 definition is not the same as the one given in the
21 South Florida Water Management District BMP Rule.
22 The Rule definition is specific to practices that
23 reduce phosphorus by 25 percent. It does not take
24 into account profitability."
25 What -- now is there a second set of BMPs
354
1 that take into account profitability? I don't
2 understand how that factor works in.
3 A. I think, as I recall, I answered this
4 yesterday, that was not my statement. That was Del
5 and Forrest's statement and I don't know exactly how
6 they derived it or arrived at that statement.
7 Q. But what's your understanding as to the
8 import of that statement or the viability of that
9 statement or the usefulness of that statement?
10 A. I imagine what they were referring to here
11 when they wrote it -- I'm not entirely positive of
12 this -- was the fact that the District Economic
13 Impact Study had not been completed at this time and
14 so, therefore, they were saying that the District did
15 not have good information on the economic impact of
16 implementing BMPs.
17 Q. Is that all you understand that
18 profitability factor to be? Do you understand it --
19 A. Again, I'm -- because it's just a statement
20 that says it does not take into account
21 profitability, they don't have any caveats or any
22 explanation as to why they're saying that. I don't
23 know what they're talking about.
24 Q. Okay.
25 A. So I don't know what they are saying there
355
1 and I did not make that suggestion to change that.
2 Q. And it doesn't fit into your opinion or
3 testimony any place, that profitability factor?
4 A. Well, I think that's what we've been
5 talking about all along. I think there's a risk
6 involved in implementing some of the BMPs. Maybe
7 that's what they're talking about, they're not taking
8 into account the risk factors. I'm assuming that's
9 what they mean.
10 If you're asking me if I think there's a
11 risk factor involved in implementing BMPs I think
12 I've said repeatedly, yes, throughout my suggestions
13 there is some risk involved.
14 Q. Now, on the nine BMPs, has anybody
15 quantified the risk factors, profitability factors of
16 the each of the nine or is that research going on
17 now?
18 I guess there's two questions. That is,
19 has anybody quantified it on each of the nine as far
20 as you know?
21 A. As far as I know, I don't think anyone has
22 gotten that specific yet.
23 Q. Is the League doing it now? Is that under
24 research now?
25 A. To my knowledge and for my part we're not
356
1 doing that.
2 Q. Okay. You've met Grace Johns how many
3 times?
4 A. Oh, I think I've had at least two meetings
5 where she's been -- that I recall right now that
6 we've both been present.
7 Q. And you received a copy of her final draft?
8 A. I received a copy of the final report. I
9 don't know for sure if I had a final draft copy.
10 Q. I'm talking about the final report.
11 A. Yes. I have a copy of her final report.
12 Q. Did you make a comment on that final report
13 to anybody?
14 A. No, I have not. I've hardly opened it.
15 Q. So you yourself have no criticism of that
16 because you haven't read it?
17 A. Correct.
18 Q. Were you responsible for providing League
19 information to Grace Johns?
20 A. All information that was provided to
21 Dr. Johns was -- went through PCLP.
22 Q. PCLP?
23 A. Peterson Consulting Limited Partnership.
24 Q. Who provided them with the information, was
25 that you or --
357
1 A. We provided them with some, but not all the
2 information they received.
3 Q. What was the flow of information? Would
4 Dr. Johns ask the League or would they ask Peterson
5 to contact the League and get the information?
6 A. I'm not that aware of exactly what Peterson
7 and Dr. Johns, how much they conversed. I'm sure
8 they conversed. That was -- their job was to
9 interact with her, but I don't know exactly. You
10 know, I wasn't there, so I don't know what they
11 talked about.
12 Q. So it's your testimony that Peterson acted
13 as the filter, they obtained information and then
14 they gave Grace Johns that information?
15 MR. STOTTS: Objection to the
16 characterization of a filter.
17 BY MR. ROSENBERG:
18 Q. What was Peterson's role here then?
19 A. Peterson's role was to act as a information
20 gathering point and to work with Dr. Johns on trying
21 to understand what her needs were and they were
22 instructed by the League to try to give her as much
23 of that as they possibly could without letting any
24 confidential information out or sensitive
25 information.
358
1 Q. They acted as a filter, would that be
2 correct?
3 A. I would not characterize it that way
4 either.
5 Q. How would you characterize it?
6 MR. STOTTS: I believe he just did.
7 THE WITNESS: Yeah. They were there to
8 help Dr. Johns and to work with her as
9 economists. I'm not an economist. Mr. Rackley
10 is not an economist. Somebody needed to -- we
11 felt like we needed trained economists in
12 getting her the information she needed and to be
13 able to talk her language.
14 BY MR. ROSENBERG:
15 Q. My question is this and maybe you can't
16 answer it. I don't know.
17 I want to know, if information was
18 requested, what the definition was of confidential.
19 You see, under what you're saying here, as I
20 understand it, only confidential information was
21 withheld. I want to determine whether it was only
22 confidential information or whether it was
23 confidential information and other information.
24 Would you know that?
25 A. No. Because what I'm referring to mostly
359
1 here is I know there was some discussion, you know,
2 among the companies about what sort of information
3 they were willing to release, for instance, on their
4 milling operations. There was a problem there. I
5 didn't get involved in that. That was Peterson's
6 baby.
7 MR. ROSENBERG: I'm sorry. I made a
8 promise to you. I have no further questions. I
9 guess I'm over time.
10 MR. NETTLETON: I've got a couple of
11 follow-ups.
12 REDIRECT (John Dunckelman, Ph.D.)
13 BY MR. NETTLETON:
14 Q. This morning we started out talking about
15 the BMPs and I neglected to ask you about one of
16 them. I went all around it. The BMP number 8 as
17 listed in the SWIM Plan concerns retention ponds for
18 storing excess drain water.
19 Am I correct that it is your opinion that
20 implementation of that particular BMP would have no
21 adverse effects on crops or crop yields or farming
22 practice other than taking a percentage of land out
23 of production?
24 A. Well, as I recall when we've discussed that
25 one, that's -- the idea of taking farm land out of
360
1 production is somewhat onerous to most of the growers
2 out there. That's where the conversations cut off.
3 We didn't really carry it much further than that.
4 Whether or not we'll pick it up in the future I don't
5 know.
6 Q. Other than taking the farm land out of
7 production, you have no opinion of any further
8 adverse effects that might have on crop yield?
9 A. Again, I haven't given it that much thought
10 and I think, you know, for me to give you an opinion
11 without having a hydrologist involved, engineers
12 involved and that sort of thing, I probably can't do
13 that. I haven't given it enough thought.
14 Q. Secondly, with regard to the Peterson --
15 what is it, Peterson, what's that name?
16 A. Peterson Consulting Limited Partnership.
17 Q. Okay. Who retained Peterson?
18 A. To be quite honest with you, I'm not
19 entirely sure.
20 Q. Do you know who paid them?
21 A. Yes. They were paid by us.
22 Q. "Us" meaning the League?
23 A. The League.
24 Q. Do you know if the other constituents of
25 the EAA who provided information to them were paying
361
1 them any fees?
2 A. I don't know if they had any such
3 arrangements. I have no knowledge of what the other
4 entities were doing precisely.
5 Q. Okay. We've spoken earlier in the
6 deposition about a particular article or report
7 authored by Deren 1991 and I'd just like to show you
8 a copy and then we'll have to make another copy to
9 take off my highlights, but ask you if that is the
10 article that you were referring to throughout your
11 testimony?
12 MR. STOTTS: If I recall correctly, his
13 testimony was that he had not actually seen the
14 article, but had heard a presentation on it.
15 But you can answer if you know.
16 THE WITNESS: I have seen this article and
17 I thought I submitted it to you as part of my --
18 BY MR. NETTLETON:
19 Q. You did. I'm just asking is that the Deren
20 report that you've been referring to in your
21 testimony?
22 A. Yes, sir.
23 Q. Okay.
24 MR. NETTLETON: I'd like to have that
25 marked as the next exhibit number, Number 27 and
362
1 I just have one other question.
2 BY MR. NETTLETON:
3 Q. Referring to Exhibit Number 12, which is
4 the BMP guidebook prepared by IFAS and, just for
5 clarification, we talked about yesterday briefly it
6 appeared that the BMP number 8 in the SWIM Plan
7 concerning retention ponds had been removed. I'd
8 just like to refer you to page 31 beginning with
9 heading B.2, Retention of Drainage on-farm. And,
10 actually, if you proceed back to page 33 under the
11 subheading, On-farm storage reservoirs, do you agree
12 that essentially they have just re-categorized this
13 as a subsection under the On-farm Retention and it is
14 still included and what was BMP 8 is now included
15 within this BMP discussion?
16 A. That's the way it appears just from an
17 initial glance.
18 MR. NETTLETON: Okay. That's all I've got.
19 MR. STOTTS: Nothing for me. We're done.
20 (The document was marked Exb. No. 27.)
21 (Witness excused.)
22
23 (Thereupon, at 12:12 p.m.,
24 the deposition was concluded.)
363
1 C E R T I F I C A T E
2 - - -
3
4 The State of Florida, )
5 County of Palm Beach. )
6
7
8 I hereby certify that I have read the
9 foregoing deposition by me given, and that the
10 statements contained therein are true and correct to
11 the best of my knowledge and belief.
12
13 Dated this ____ day of______________ 1993.
14
15
16
17
18 _________________________
19 John Dunckelman, Ph.D.
20
21
364
1 C E R T I F I C A T E
2
The State of Florida )
3 County of Palm Beach. )
4
I, April Y. Sapp, Court Reporter and Notary
5 Public, State of Florida at large, do hereby certify
that John Dunckelman, Ph.D. was by me first duly
6 sworn to testify the whole truth; that I was
authorized to and did report said deposition in
7 stenotype; and that the foregoing pages, numbered
from 1 to 363, inclusive, are a true and correct
8 transcription of my shorthand notes of said
deposition.
9
I further certify that the said deposition
10 was taken at the time and place hereinabove set forth
and that the taking of said deposition was commenced
11 and completed as hereinabove set out.
12 I further certify that I am not attorney or
counsel of any of the parties, nor am I a relative or
13 employee of any attorney or counsel or party
connected with the action, nor am I financially
14 interested in the action.
15 The foregoing certification of this
transcript does not apply to any reproduction of the
16 same by any means unless under the direct control
and/or direction of the certifying reporter.
17
In witness whereof I have hereunto set my
18 hand and seal this ____ day of_____________ 1993.
19
20
_______________________________
21 April Y. Sapp,
Notary Public, State of Florida
22 at large. My commission expires
August 3, 1993.
23
24
25