1 STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE

2 HEARINGS

3 Case No. 92-3038

92-3039

4 92-2040

5 SUGAR CANE GROWERS COOPERATIVE OF FLORIDA,)

a Florida Agricultural Cooperative )

6 Marketing Association, ROTH FARMS, INC., )

and WEDGWORTH FARMS, INC., )

7 )

and )

8 )

FLORIDA SUGAR CANE LEAGUE, INC. and )

9 UNITED STATES SUGAR CORPORATION, )

)

10 and )

)

11 FLORIDA FRUIT AND VEGETABLE ASSOCIATION, )

LEWIS POPE FARMS, W.E. SCHLECHTER & SONS, )

12 INC., and HUNDLEY FARMS, INC. )

)

13 Petitioners, )

)

14 vs. )

)

15 SOUTH FLORIDA WATER MANAGEMENT DISTRICT, )

an Agency of the State of Florida, )

16 )

Respondent, )

17 )

and )

18 )

MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, )

19 the UNITED STATES OF AMERICA, FLORIDA )

DEPARTMENT OF ENVIRONMENTAL PROTECTION, )

20 the FLORIDA WILDLIFE FEDERATION, the )

FLORIDA AUDUBON SOCIETY, and the SIERRA )

21 CLUB, )

)

22 Intervenors. )

DEPOSITION OF JOHN HUNDLEY

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 500 Australian Avenue

South

2 West Palm Beach, Florida

February 14, 1994

3 11:25 a.m. - 1:50 p.m.

and 2:35 p.m. - 4:00 p.m.

5 DEPOSITION OF JOHN HUNDLEY

6 Taken before Mia Sohn, Notary Public

7 in and for the State of Florida at Large, pursuant

8 to Notice of Taking Deposition filed in the above

9 cause.

- - - - - - -

APPEARANCES:

ON BEHALF OF THE USA:

U.S. ATTORNEY'S OFFICE

14 99 N.E. Fourth Street, Third Fl.

Miami, Florida 33132

15 BY: Kathy Stark, AUSA

17 ON BEHALF OF THE WITNESS:

18 LAW OFFICES OF HOPPING, BOYD, GREEN &

SAMS

19 123 South Calhoun Street

Tallahassee, Florida 32314

20 BY: Robert P. Smith, Jr., Esq.

22 ON BEHALF OF SOUTH FLORIDA WATER MANAGEMENT:

23 LAW OFFICES OF SIMMONS & SOLOMON

Fountain Plaza

24 10020 South Federal Highway

Port St. Lucie, Florida 34952

25 BY: Diane Misiak, Esq.

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 I N D E X

2 Witness -- John Hundley

3 Direct Examination by Ms. Stark, Page 4

Cross Examination by Ms. Misiak, Page 134

E X H I B I T S

For Government:

#1, Notice of taking deposition, 7 pages,

8 Page 8, Line 23

#2, Witness disclosure of the Petitioners,

9 6 pages,

Page 11, Line 24

10 #3, Designation of expert and fact witnesses of

Petitioners, 16 pages,

11 Page 14, Line 11

#4, Amended petition for formal administrative

12 proceeding, 18 pages,

Page 16, Line 16

13 #5, Water monitoring results, Sept. '91 through

Aug. '92, 6 pages,

14 Page 45, Line 13

#6, Water monitoring data, 1/1/93 through

15 12/27/93,

Page 60, Line 18

16 #7, Permit from South Florida Water Management

District, 4 pages,

17 Page 66, Line 14

#8, BMP annual report,

18 Page 84, Line 20

#9, Phosphorus fertilization comparison for

19 Pioneer #2,

Page 87, Line 1

20 #10, Jan. 28, 1993 letter to Mike Lockhart,

2 pages,

21 Page 92, Line 16

#11, Phosphorus loading comparison for Pioneer #2,

22 Page 100, Line 20

#12, EAA WOD review summary, 8 pages,

23 Page 102, Line 13

#13, Water quality studies in the EAA of Florida,

24 July '78, 70 Pages,

Page 105, Line 17

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 Thereupon:

2 JOHN HUNDLEY

3 was called as a witness by the Government, and

4 after being first duly sworn, was examined and

5 testified under oath as follows:

6 DIRECT EXAMINATION

7 BY MS. STARK:

8 Q. Could you please state your full name

9 for the Record?

10 A. John Lloyd Hundley.

11 Q. And can you spell your last name?

12 A. H-u-n-d-l-e-y.

13 Q. Have you ever had your deposition taken

14 before?

15 A. Yes, I have.

16 Q. So you are familiar with the question

17 and answer format of a deposition?

18 A. Somewhat.

19 Q. If at any time you don't understand a

20 question that I've asked you or it doesn't make

21 sense to you in the way it's phrased, tell me that

22 and I'll be happy to rephrase the question or ask

23 you in another way. Once you've answered a

24 question, I'll assume you've understood the

25 question I asked you and you are answering to the

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 best of your ability, okay?

2 A. Okay.

3 Q. What is your date of birth, sir?

4 A. April 21, 1944.

5 Q. And just briefly, what is your

6 educational background?

7 A. High school, Pahokee High School. I

8 graduated from the University of Florida with a

9 degree in management. That was my major. I had a

10 co-major in ag. economics.

11 Q. In agriculture economics?

12 A. Yes.

13 Q. Any postgraduate work?

14 A. No. That was in the business school,

15 the management degree was.

16 Q. And also, if you could briefly give me

17 your employment history.

18 A. Graduated in 1965, August, '65. I

19 worked for my father's company, McClure, Hundley

20 and Apelgran.

21 Q. McClure?

22 A. Hundley and Apelgran, A-p-e-l-g-r-a-n.

23 I worked in a partnership one year

24 after that with Mr. Apelgran, and then in 1969

25 founded Hundley Farms and have been self-employed

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 with Hundley Farms since 1969.

2 Q. What type of work did McClure, Hundley

3 and Apelgran and then your partnership with

4 Apelgran do?

5 A. Farm sweet corn and a little sugar

6 cane, principally sweet corn.

7 Q. And is Hundley Farms incorporated?

8 A. Yes, it is.

9 Q. Is it a publicly held corporation or

10 private?

11 A. Private.

12 Q. And currently what crops does Hundley

13 Farms produce?

14 A. It raises sweet corn, sugar cane and

15 seed corn. That's corn for seed, for seed

16 companies.

17 Excuse me. We have a few cattle, very

18 few, and a little over 100 acres of citrus grove.

19 Q. Basically then have you given it to me

20 kind of in descending order?

21 Is most of your land in sweet corn?

22 A. Sweet corn. Actually sugar cane then

23 sweet corn.

24 Q. So sugar cane would be the largest

25 amount?

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 A. Of Hundley Farms, yes.

2 Q. And then sweet corn and then seed

3 corn?

4 A. That's correct.

5 Q. And where is Hundley Farms located?

6 A. Our sugar cane and sweet corn operation

7 is in Palm Beach County. My office is on Old

8 State Road 80 where I think it's now called 880

9 about 15 miles east of Belle Glade. That's where

10 my offices are and our shops and our primary

11 farm.

12 The cattle and citrus is in

13 southwestern Brevard County.

14 Hundley Farms also owns land in Decatur

15 County, Georgia. We don't farm it. We lease it

16 to another company.

17 Q. And does that company farm that land?

18 A. That company does farm that land, yes,

19 and I am part of that company as well.

20 Q. Does Hundley Farms own all of the land

21 in Palm Beach County and Southwest Brevard County

22 that you farm?

23 A. That I farm, no.

24 Q. As a percentage, approximately how much

25 of it is owned by Hundley Farms?

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 A. Of Hundley Farms' crops?

2 Q. I'll rephrase it.

3 I'm assuming that Hundley Farms owns

4 some of the land and leases some of the land; is

5 that correct?

6 A. That's correct.

7 Q. Is it possible to give me a percentage

8 of how much is owned and how much is leased?

9 A. Roughly let me calculate it.

10 MR. SMITH: You can give it in acres.

11 THE WITNESS: Hundley Farms owns 2,611

12 gross acres. We rent another 150, 264 and 269.

13 BY MS. STARK:

14 Q. So you rent three different parcels of

15 a 150 acres, 264 acres and 269 acres?

16 A. Yes, ma'am.

17 Q. Thank you.

18 Sir, are you familiar with the notice

19 of taking deposition that was sent to your counsel

20 for today's deposition? Have you seen that

21 before?

22 Let me have her mark it first.

23 (The document referred to was

24 thereupon marked as Government's

25 Exhibit Number One for Identification,

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 a copy of which is attached hereto.)

2 BY MS. STARK:

3 Q. I'm showing you what we've now marked

4 as Government's Exhibit One and it's the notice of

5 taking deposition for today's deposition.

6 Have you seen this before?

7 A. I believe so, yes.

8 Q. Can you take a look at Page Six of that

9 document that says documents to be produced and

10 tell me if you have searched the records to find

11 any documents that are responsive to those various

12 categories?

13 THE WITNESS: Bob, is this the same

14 list that we saw sometime back?

15 BY MS. STARK:

16 Q. You pretty much have to do it from your

17 own recollection.

18 MR. SMITH: Why don't you just tell her

19 that your counsel told you what documents to

20 produce and you didn't make any independent search

21 of the documents on that list?

22 BY MS. STARK:

23 Q. Let's have him testify what he

24 remembers, too.

25 A. I spoke with counsel and we did go

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 through my records and found the things that was

2 responsive to what was requested of me, not off of

3 this. I only saw this yesterday afternoon, but it

4 was back a month or two ago, and I provided that

5 to counsel. It's been sometime back. I did not

6 redo it after I got this notice.

7 Q. Okay. And you've provided all the

8 documents in your files that were responsive?

9 A. To the best of my knowledge, yes.

10 Q. I notice in the documents that we

11 received, we did not receive a resume or a

12 curriculum vitae, something along that nature.

13 Do you have such a document? Have you

14 ever created one for yourself?

15 A. No, I don't.

16 Q. Have you ever published any articles or

17 journal articles concerning any of the topics that

18 are involved in this litigation?

19 A. No, ma'am.

20 Q. I would assume that you apply

21 fertilizers to the various lands that are farmed

22 by Hundley Farms; is that correct?

23 A. Yes, we do apply fertilizer.

24 Q. Do you purchase that fertilizer from

25 some other entity?

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 A. Yes, all of it. We manufacture none.

2 Q. Do you have invoices or any records

3 kept of the amount of fertilizer that's been

4 purchased?

5 A. The records are kept in the normal

6 course of business, billing and paying our bills.

7 We do have for my --

8 My consultant does have some fertilizer

9 records where he soil tested and his

10 recommendations as to what we apply.

11 Q. Who do you use as a consultant?

12 A. Mike Lockhart. I'm not sure of the

13 name of his company. It may be Lockhart &

14 Company, but his name is Mike Lockhart.

15 Q. Sir, you've been designated as a

16 witness by two of the Petitioners in this action,

17 the first of those being the Florida Fruit and

18 Vegetable Association, Lewis Pope Farms, W.E.

19 Schlecter & Sons and Hundley Farms, Inc., which

20 you've told me the Hundley Farms, Inc. is your

21 company. So, in fact, that is one of the

22 Petitioners in this case.

23 MS. STARK: Mark this as Exhibit Two.

24 (The document referred to was

25 thereupon marked as Government's

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 Exhibit Number Two for Identification,

2 a copy of which is attached hereto.)

3 BY MS. STARK:

4 Q. I'm showing you what's been marked as

5 Government's Exhibit Two. It's the witness

6 disclosure of the Petitioners, Florida Fruit and

7 Vegetable Association, Lewis Pope Farms, W.E.

8 Schlecter & Sons and Hundley Farms, Inc.

9 Have you seen this document before?

10 A. I may have or may not. I don't

11 recognize it right off hand, no.

12 Q. That document says on the first page

13 fact witnesses, and then it says, "Petitioners may

14 call as fact witnesses" --

15 MR. SMITH: I object to this recital of

16 the document. He hasn't seen the document before,

17 can't identify it and can't interpret it.

18 MS. STARK: I'm going to read it into

19 the Record.

20 BY MS. STARK:

21 Q. The document says:

22 "The Petitioners may call as

23 fact witnesses concerning farming

24 enterprises, and practices, and

25 information concerning location of

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 farms, and perceived impact of the

2 carrying out of the order called the

3 SWIM Plan, the following persons", and

4 then you are listed as the third person.

5 Have you prepared factual testimony

6 concerning that area for the final hearing in this

7 matter?

8 MR. SMITH: Object to that. The

9 witness is here as a factual witness and whether

10 he prepared it is quite inconsequential.

11 MS. STARK: My question is not whether

12 he prepared it. It's whether or not he prepared

13 testimony in those areas.

14 MR. SMITH: Yes.

15 MS. STARK: Are you instructing him not

16 to answer?

17 MR. SMITH: I'm objecting to the

18 question. I'm not instructing him not to answer.

19 BY MS. STARK:

20 Q. You may answer the question.

21 A. I'm not clear what you mean prepared

22 testimony.

23 Q. Has anyone suggested to you that you'll

24 be asked to testify to those areas, farming

25 enterprises, practices and information concerning

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 location of farms and perceived impact of the

2 carrying out of the order called the SWIM Plan?

3 A. I assumed that's what I was doing here

4 today.

5 Q. All right. Have you been told that you

6 will testify to those areas at the final hearing?

7 A. I have not been told that, no. No,

8 I've not positively been told that.

9 Q. All right.

10 MS. STARK: Mark that as Three.

11 (The document referred to was

12 thereupon marked as Government's

13 Exhibit Number Three for

14 Identification, a copy of which is

15 attached hereto.)

16 BY MS. STARK:

17 Q. Showing you what's been marked as

18 Government's Exhibit Three, which is the

19 designation of expert and fact witnesses of the

20 Petitioners, Sugar Cane Growers Cooperative of

21 Florida, Roth Farms and Wedgworth Farms, and on

22 Page Three of that document, you are listed as an

23 expert with the subject matter of your expected

24 testimony, description of on-farm practices that

25 have a bearing on the amount of phosphorus

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 discharged off-site.

2 Have you prepared expert testimony

3 concerning on-farm practices that have a bearing

4 on the amount of phosphorus discharged off-site?

5 MR. SMITH: Object to that as it calls

6 for the witness' conclusion as to whether his

7 testimony falls under the category of an expert or

8 as him commonly walking around as a farmer.

9 MS. STARK: So object to the form and

10 then allow your witness to answer the question

11 instead of testifying for him.

12 MR. SMITH: I object.

13 BY MS. STARK:

14 Q. You may answer the question, sir.

15 A. I haven't prepared expert testimony. I

16 know and I feel that I am knowledgable of on-farm

17 practices that we've used on my farm for many,

18 many years. I don't know how else to answer other

19 than that way.

20 Q. Okay. Has anyone from the Cooperative

21 discussed with you the fact that you would be

22 testifying as an expert at the final hearing?

23 A. No, they have not. I don't recall that

24 at all.

25 Q. Sir, have you read the petitions that

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 were filed by the Florida Fruit and Vegetable

2 Association and the Sugar Cane Growers Cooperative

3 in this case?

4 A. Do you have copies of them?

5 Q. I do.

6 Do you recall ever reading them?

7 MR. SMITH: Just answer her question.

8 THE WITNESS: I believe I read them,

9 yes.

10 MS. STARK: Okay. Mark that as Four.

11 THE WITNESS: I would like to add that

12 this has been going on for quite sometime. Some

13 of the documents I may have seen at this point a

14 year or two ago. I'm not a lawyer so I don't

15 maybe remember them like you people do.

16 (The document referred to was

17 thereupon marked as Government's

18 Exhibit Number Four for

19 Identification, a copy of which is

20 attached hereto.)

21 BY MS. STARK:

22 Q. I certainly understand that.

23 Can you take a look at what has been

24 marked as Exhibit Four and tell me if you remember

25 ever having read through that before?

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 MR. SMITH: Do you understand the

2 question?

3 THE WITNESS: Yes.

4 I believe I have.

5 BY MS. STARK:

6 Q. I'd like you to take a look at Page Six

7 where it lists material facts that are in dispute

8 and tell me whether you have ever been asked and

9 tell me whether you plan to testify at trial

10 concerning the material facts that are in dispute

11 as set forth in the Florida Fruit and Vegetable

12 petition.

13 MR. SMITH: Object to the form of that

14 question. He couldn't possibly know.

15 MS. STARK: Then we can go through them

16 one at a time.

17 MR. SMITH: You asked him whether he

18 plans to testify at trial. He's not planning the

19 trial strategy.

20 MS. STARK: You've listed him as a fact

21 witness and an expert witness.

22 MR. SMITH: Then ask him a factual

23 question. You are asking him legal analyses.

24 MS. STARK: Are you instructing him not

25 to answer?

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 MR. SMITH: No, ma'am.

2 Go ahead.

3 BY MS. STARK:

4 Q. All right. Sir, have you ever --

5 MR. SMITH: Read the original question

6 back to him.

7 You want to change the question now?

8 MS. STARK: Counsel, I think this is my

9 deposition.

10 MR. SMITH: All right.

11 MS. STARK: All right.

12 MR. SMITH: I objected to the question

13 you asked before.

14 Are you going to rephrase it or you

15 want him to answer that question you asked

16 before?

17 MS. STARK: I'm going to rephrase the

18 question.

19 MR. SMITH: Good.

20 BY MS. STARK:

21 Q. Are you planning to testify concerning

22 the strategies to achieve phosphorus concentration

23 levels?

24 MR. SMITH: He doesn't know.

25 MS. STARK: Excuse me, sir. Let's let

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 your witness testify today.

2 MR. SMITH: You are asking him am I

3 planning to call him as a witness to testify to

4 certain strategies.

5 MS. STARK: Do you represent the

6 Florida Fruit and Vegetable Association?

7 MR. SMITH: No, ma'am.

8 MS. STARK: That's the petition I'm

9 looking at right now, not the Sugar Cane

10 Cooperative's.

11 MR. SMITH: I'm representing the

12 witness here and what I say with respect to my

13 plans for witnesses to the trial pertains, I'm

14 sure, to counsel for the Florida Fruit and

15 Vegetable Association. This witness doesn't know

16 what their plans are. He's a factual witness.

17 MS. STARK: I understand that and I'm

18 trying to determine what facts it is he's going to

19 be testifying to and these are the petitions that

20 we are basing this lawsuit on, are they not, sir?

21 MR. SMITH: Let me just put on the

22 Record then that I furnished you documents in

23 response to your Request for Production and

24 explained to you on the telephone that this

25 witness is going to testify to farm practices and

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 BMPs at the Pioneer Number Two Farm in Palm Beach

2 County; that this farm was the principal vegetable

3 farm that was the subject of the CH2MHill study in

4 1977-78 and that the witness is prepared to

5 testify about on-farm practices, fertilizer

6 applications, sorts of crops, pumping practices

7 and the such that a farmer is subjected to.

8 MS. STARK: So I take it that we can

9 then limit his testimony to those areas you stated

10 and if he tries to testify to anything else at all

11 during this deposition, we can object and keep it

12 out?

13 MR. SMITH: You can ask him questions

14 about any subject you'd like.

15 MS. STARK: If you stop objecting, I'll

16 do exactly that.

17 MR. SMITH: I will not have the witness

18 bound by an interpretation of this legal

19 document. He's not in a position to interpret the

20 meaning of this document.

21 MS. STARK: Sir, I'm not asking him for

22 a legal conclusion.

23 MR. SMITH: And you don't know whether

24 he's going to be called to testify to this or

25 that.

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 You can ask him any question within any

2 aspect within his knowledge, but to ask him what

3 the meaning was of this document I think is

4 improper.

5 MS. STARK: I'm trying to find out

6 exactly what his knowledge is. We can sit here

7 and argue for the rest of the day and then he can

8 come back two more days instead of one.

9 Now, can I ask him a question?

10 MR. SMITH: Please do.

11 MS. STARK: Thank you.

12 BY MS. STARK:

13 Q. Sir, I'm trying to find out what areas

14 it is that you have knowledge concerning. This

15 petition has been filed by the Florida Fruit and

16 Vegetable Association. I understand that you have

17 a farm and I understand that you will be

18 testifying concerning BMPs and concerning pumping

19 practices. What I'm trying to discover is whether

20 or not you have additional knowledge you will be

21 testifying to at the final hearing. There are a

22 variety of things listed in the facts in dispute.

23 I'm trying to find out what you will be testifying

24 concerning any of the facts in dispute.

25 The first paragraph states:

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 "Whether the strategies to

2 achieve phosphorus concentration

3 levels require installation and use of

4 STAs as concluded in the Plan."

5 Will you be testifying regarding any

6 STA, stormwater treatment areas?

7 A. I have not been notified by anybody as

8 to what I will be testifying about.

9 Q. Do you have any knowledge concerning

10 the construction or the use of stormwater

11 treatment areas in the Everglades?

12 A. The knowledge that I would have would

13 be limited to my practical experience and

14 knowledge of running a farm, of maintaining and

15 digging water controlled structures and canals and

16 pumping practices and just on-farm type knowledge

17 of that sort. I mean, we've had to deal with

18 drainage and these type of issues ever since I was

19 a kid. I was born and raised in the Glades. I

20 guess you learn a certain amount of it over a

21 period of time through absorption. As to whether

22 I have any formal education or background or

23 knowledge as an engineer of that, only as a

24 practical farm engineer running my farm and having

25 to deal with practical solutions to problems.

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 Q. As you have run your farm over the

2 years, have you become knowledgable concerning the

3 effectiveness of stormwater treatment areas?

4 A. We've never run one. I have opinions,

5 but they would be my opinion, that's all.

6 Q. Well, you have been listed as an expert

7 in this case and experts do provide opinions.

8 What is your opinion of the

9 effectiveness of the stormwater treatment areas as

10 designed by the SWIM Plan?

11 A. As designed by the SWIM Plan?

12 I have serious doubts about them.

13 Q. And what do you base those doubts

14 upon?

15 A. Just my own personal feelings.

16 Q. Have you done any research or

17 experimentation that would lead you to believe or

18 would lead you to have these doubts about the

19 stormwater treatment areas?

20 A. No, I've never done any research on

21 them, no.

22 Q. Do you have any opinions or do you have

23 any knowledge concerning the Federal settlement

24 agreement as referred to in Paragraph Three on

25 Page Six?

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 A. I haven't been involved in that at

2 all.

3 Q. On Page Seven, Paragraph Five it states

4 that a fact in dispute is whether the phosphorus

5 from the land of EAA farms reaching the Park, the

6 Loxahatchee Refuge or the Everglades Protection

7 Area at levels in violation of Class III water

8 quality standards.

9 Are you in possession of any facts or

10 any opinions concerning whether phosphorus from

11 your farm in the EAA reaches the Park, the Refuge

12 or the EPA?

13 A. From my years on the Water Management

14 District Board, the staff reported at that time

15 that there were phosphorus reaching the Park and

16 the Loxahatchee Refuge.

17 As far as whether it violates Class III

18 waters, I'm not clear on that in the Refuge. I

19 did not think it did in the park.

20 As to whether that phosphorus is from

21 my farm, it's all blended together in those

22 canals. I don't quite know how to answer that.

23 Q. Where does the runoff from your farm

24 go?

25 A. Which farm?

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 Q. Well, let's start with the farms that

2 are in Palm Beach County.

3 A. Okay. Pioneer Number Two Farm, which I

4 think has been referred to, on Old State Road 80

5 goes into the Ocean Canal. Generally that water

6 goes to the east through S-5A, but it can and

7 sometimes goes to the west depending on how the

8 District has their pumping scheme set up and then

9 could go into the Hillsboro or Lake Okeechobee

10 through S-3 or four. I can't remember which one

11 it is.

12 I have two owned farms and one leased

13 farm that are in Shawano Drainage District that is

14 discharged into their district waters. They

15 discharge the water into the Hillsboro Canal which

16 then goes down, I believe, to S-2. I could be

17 mistaken on that.

18 I have another leased farm that also

19 discharges water into the Ocean Canal, most of

20 which goes to S-5A but can go to the west as

21 well.

22 I have another leased farm that

23 discharges into the South Shore or Lake Shore, I

24 can't remember. It's another drainage district.

25 I can't get the name exactly right, and that then

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 is discharged into the -- I guess it's the Ocean

2 Canal, but it's far enough west that it should end

3 up going down to Hillsboro or back into the lake

4 in Belle Glade. There, again, depending on the

5 pumping scheme of the District in force at any

6 given day.

7 I believe that's all of the ones that

8 we have permanent.

9 Now, there's one more on Pioneer Number

10 One, but that's not Hundley Farms. We do rent it

11 and it goes into the Hillsboro Canal.

12 Q. You mentioned a minute ago from your

13 days on the Water Management District Board.

14 Did you serve as a governing member?

15 A. For five years approximately.

16 Q. Do you recall the dates?

17 A. It was from sometime, I think, in '78

18 to sometime in '83. It was five years plus or

19 minus. I don't know the exact dates.

20 Q. Can you tell me what other political

21 type of positions you may have held through the

22 years such as being a member of the governing

23 board?

24 A. That depends on one's definition of

25 political.

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 As far as Governmental agencies, I

2 don't think there have been any. I've been on the

3 Farm Credits Board and several other agricultural

4 entities and organizational boards, but not as an

5 appointed or elected official of a Government

6 agency that I can recall.

7 Q. When were you on the Farm Credits

8 Board?

9 A. For 15 years up until about two or

10 three years ago. I resigned. I don't have the

11 dates. I was there 15, 16 years.

12 Q. I'm not sure what word to use.

13 Any other positions that you may have

14 held other than in your employment at Hundley

15 Farms?

16 A. You mean as directorships or that type

17 of thing?

18 Q. Or as a member of an organization.

19 A. I've been a member of the Farm Bureau.

20 Hundley Farms is a member of the Florida Fruit and

21 Vegetable Association. Hundley Farms is an owner

22 and member of Pioneer Growers Cooperative, a

23 vegetable marketing cooperative. Hundley Farms is

24 an owner and I'm a director of Sugar Cane Growers

25 Cooperative of Florida.

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 Q. I'm sorry. You said Hundley Farms is a

2 member and you are --

3 A. One of the members and I'm a director.

4 Q. You are a director?

5 A. Yes.

6 There may have been some other

7 directorships or something like that. That's all

8 I can remember right now.

9 Q. Was Hundley Farms ever a member of the

10 Florida Sugar Cane League?

11 A. Yes.

12 Q. When was that?

13 A. Probably from the early '70s, and we

14 still participate. We're not an active member,

15 but we do participate in their cane breeding and

16 variety development program, and I did serve on

17 the Environmental Quality Committee of the Sugar

18 Cane League as a representative of Sugar Cane

19 Growers Co-op for three or four years, something

20 like that.

21 Q. That was going to be my next question.

22 Did you ever hold any officer,

23 directorship in the League? That was the only

24 one?

25 A. I was just a representative of Sugar

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 Cane Growers on the Environmental Quality

2 Committee.

3 Q. There was a time basically everyone

4 that was a member of the Cooperative was also a

5 member of the League; is that a true statement?

6 A. You didn't have to be. As a general

7 rule, most were, but it was not a requirement. It

8 was still a voluntary -- It was voluntary as to

9 individual memberships.

10 Q. Sir, have you come to any conclusions

11 or formed any opinions concerning the issues

12 raised by the Petitioners in this case regarding

13 the hydroperiod issue in the Everglades? In other

14 words, whether hydroperiod may be more or less of

15 a problem than nutrient enrichment in the

16 Everglades?

17 A. There again, as a layman and through

18 practical experience, I personally believe that it

19 is, the hydroperiod, is by far the more serious

20 problem.

21 Q. And on what do you base that opinion?

22 A. Years of experience and my exposure as

23 a board member for five years at the Water

24 Management District.

25 Q. Specifically what experiences did you

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 have as a board member that leads you to believe

2 hydroperiod is, in fact, the problem in the

3 Everglades?

4 A. I guess just hundreds of hours of

5 discussion before the board. To quote the exact

6 scientific study or report, I can't do that.

7 Q. And again, have you yourself conducted

8 any experimentation or research?

9 A. No, ma'am, not as related to

10 hydroperiod.

11 Q. Do you intend to testify as to your

12 opinion concerning either hydroperiod or nutrient

13 enrichment in either the Refuge or the Park?

14 A. I have not --

15 MR. SMITH: Object to the form of the

16 question. He's not making a decision about what

17 he'll be called to testify about. If he's got

18 factual and lay opinions with respect to it you'd

19 like to know about, I'm sure he'll tell you.

20 MS. STARK: That may be true, but we're

21 only a few weeks from the final hearing and he's

22 listed as an expert and I think we're entitled to

23 find out what expert opinions he's going to give.

24 MR. SMITH: You are entitled to find

25 out what expert opinion he has. If he's been told

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 by somebody what the scope of his testimony is

2 likely to be, that somebody would be a lawyer. I

3 have no objection to your eliciting that and have

4 no objection to your asking any opinion or fact to

5 which he has knowledge, but he hasn't prepared any

6 expert testimony and I believe he says he hasn't.

7 I think it's been answered.

8 With that, I'd be glad for you to

9 pursue it any way you choose.

10 BY MS. STARK:

11 Q. You can answer the question.

12 A. Ask me again. I'm sorry.

13 Q. Okay. Well, let's try it this way.

14 Maybe we won't get so many objections from your

15 counsel.

16 Do you have an expert opinion regarding

17 whether or not hydroperiod or nutrient enrichment

18 are problems in either the Refuge or the Park?

19 A. I have a layman's opinion.

20 Q. And that layman's opinion is what

21 you've testify to; that you believe hydroperiod is

22 the problem?

23 A. Yes, as I stated earlier today.

24 Q. Is it your layman's opinion that

25 nutrient enrichment is not a problem in the

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 Everglades?

2 A. No, it's not.

3 Q. So you --

4 MR. SMITH: I didn't understand the

5 question.

6 Does that mean no, it's not a problem,

7 or no, it's not his opinion?

8 What did you mean by that?

9 MS. STARK: Counsel, I think I'm asking

10 the questions.

11 MR. SMITH: All right.

12 BY MS. STARK:

13 Q. Is it your opinion that nutrient

14 enrichment is, in fact, a problem in the

15 Everglades?

16 A. I believe it's a contributing problem.

17 I don't believe it's the primary one.

18 Q. Have you done any research or

19 experimentation regarding nutrient enrichment on

20 your farms?

21 A. You mean nutrient enrichment such as an

22 STA type holding pond environment? Is that what

23 you mean?

24 Q. It could be that. It could be testing

25 of waters to determine the phosphorus level. Any

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 type of testing at all.

2 A. Yes, we have done that. My farm was

3 the vegetable test site in the Sugar Cane League

4 and Water Management District study in '76 and

5 '77.

6 We have monitored my farm on a

7 voluntary basis. I believe it was from September

8 of '91 through August of '92 and we are, of

9 course, monitoring it as a matter of public record

10 beginning January 1, '93 to date as required

11 because we were establishing our early baseline.

12 That was phosphorus testing as to concentrations.

13 Q. Let's start with the 1976-77 study.

14 That study as I understand it from your

15 documents concerned Pioneer Farm Number Two; is

16 that correct?

17 A. Yes. The Number One Vegetable Site, I

18 think, is what they called it in that study was

19 the farm that I call Pioneer Number Two.

20 Q. And then the September, 1991 through

21 August, 1992 voluntary monitoring that you did,

22 which one of your farms or ones of your farms were

23 included in that voluntary monitoring?

24 A. Pioneer Number Two, the same exact

25 location.

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 Q. The same site?

2 A. Monitoring in exactly the same location

3 as it was done in '76 and '77.

4 Q. And the monitoring that's being done as

5 of January 1, 1993 to establish the early

6 baseline, is that also Pioneer Farm Number Two?

7 A. That's being done on Pioneer Number

8 Two. It's also been done as required by the Water

9 Management District on our South Florida grassing

10 farm referred to as 20 Mile Bend. It's also being

11 done --

12 Q. Sorry. Where is that one located?

13 A. In the 20 Mile Bend area. It's east of

14 Pioneer Number Two discharging in the Ocean

15 Canal.

16 Q. And any other areas?

17 A. The other area is the farm we call

18 Palez and that discharges -- this is a farm I left

19 off my list earlier by the way -- discharges into

20 the Bolles Canal. We're doing monitoring there.

21 Those are the three sites that Mr. Lockhart and my

22 employees are responsible to monitor.

23 The other farms are either within

24 drainage districts, so we discharge into the

25 drainage district and then the district has to do

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 its monitoring, or it's within another large farm

2 and the main land owner there does the

3 monitoring.

4 Pioneer Number One, or John Schlecter,

5 I think you are familiar with them.

6 Q. Schlecter?

7 A. Yes.

8 Q. It's within --

9 A. It's a main farm. I rent part of the

10 back. He owns part of it and rents part of it.

11 He and his people take care of the monitoring and

12 pump stations.

13 Those three, Pioneer Two, 20 Mile Bend

14 and Palez, are the three we monitor, that we

15 directly monitor.

16 Q. All right. Next question. It sounds

17 like everything is being monitored by someone, but

18 these three are the ones you are --

19 A. Yes. The Shawano and South Florida

20 Conservancy, the McCabe Farm discharges into

21 that.

22 Shawano and South Florida Conservancy,

23 I don't think they went on the early baseline

24 program. They deal directly with the District,

25 not myself, and others as individual landowners,

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 and I think they went the general reduction route

2 rather than the early baseline.

3 Q. Sir, am I correct in assuming that you

4 are not going to provide any testimony at a final

5 hearing or today for that matter concerning

6 vegetation or wildlife in the Park itself?

7 A. I haven't been told that I am anyway.

8 I don't think so.

9 Q. Do you have any experience relating to

10 the biological issues regarding paraphytes or

11 macrophytes in the Everglades?

12 A. Only as a layman's perspective. I was

13 exposed to a certain amount of presentations and

14 that type of thing when I was on the Water

15 Management District.

16 MR. SMITH: You won't be asked about

17 that. You may pursue it if you like, but you

18 won't be asked.

19 BY MS. STARK:

20 Q. You testified you left the board in

21 1983?

22 A. I believe it was '83.

23 Q. Approximately.

24 Sir, do you know if any of the drainage

25 from either the Hillsboro or the Ocean Canals

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 flows directly into the Loxahatchee Refuge?

2 A. The Ocean Canal, I believe, does

3 through S-5A.

4 You have several canals that meet there

5 at S-5A. I don't know technically what they call

6 the canal in front of it, but I believe that's

7 where the water goes.

8 Q. What is the first time that you recall

9 doing any work on best management practices, or

10 BMPs as they are normally referred to? Was it in

11 connection with the 1977 study?

12 A. As I recall in the '77 --

13 The '76-'77 study, no. We were to

14 operate our farms, our pumping, fertilizer,

15 whatever, the way we historically had, so there

16 were not BMPs imposed on us specifically for that

17 study, no.

18 I'm not sure I can give you an exact

19 date.

20 Q. That's okay. I'm not looking for an

21 exact date.

22 A. We, I and Hundley Farms, we became

23 interested in phosphate and the application of

24 phosphate, in the application specifically, and

25 most importantly as related to our sweet corn and

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 vegetable crops in the early days, and probably

2 somewhere in the early '70s we began to -- early

3 to mid-'70s began soil testing and application of

4 polyphosphate or liquid phosphates in banded form

5 principally on our sweet corn crops primarily as a

6 way to spend less money, and then in the '70s, we

7 went through a lot of the same thing in our leafy

8 vegetable crops which I no longer grow. I haven't

9 for the last couple years.

10 In 19-, I believe it was '87, Mr.

11 Lockhart, Mike Lockhart, went to work for myself

12 and John Schlecter and we began working very

13 diligently on extensive soil testing and some

14 private research that Mr. Lockhart conducted to

15 gain a better understanding of under different

16 soil types, different conditions, different BMPs,

17 how much phosphate did the plant tell us that the

18 plant needed, the plant meaning the variety or

19 species of vegetable that we were growing. Let

20 the plant tell us what it really needed so that we

21 did not have to use any more phosphate than the

22 plant said it needed, and Mr. Lockhart worked

23 exclusively at that time for us, I guess, about

24 four years. That's about seven years ago now. He

25 went into private practice a couple years ago, and

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 I may be off six months on that. He went into

2 private consulting practice a couple years ago.

3 Four years prior to that, he was with Everglades

4 Celery Corporation.

5 Q. Everglades Celery Corporation?

6 A. Yes, which no longer grows celery.

7 He worked for us. Our emphasis was to

8 use less phosphate. Our concerns were

9 economically motivated certainly, but there also

10 was the concerns that I shared from my experiences

11 or learned from my experiences on the Water

12 Management District that phosphate is an issue

13 here and the less that we feel like we can use and

14 successfully use without endangering or making our

15 production process more risky, then the better off

16 in the long run we would be.

17 Subsequently, in 1987 as a result of

18 this research, we used significantly less

19 phosphate than we had used in years prior to

20 that. Now, whether that's technically a BMP or

21 not, it may not be as described. However,

22 extensive soil testing recommendations to a given

23 criteria and banding of our phosphate fertilizers,

24 those types of things, are listed on most farms'

25 BMP lists and are listed on most all, if not all,

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 of the Water Management District BMP lists.

2 So I believe that in the early '70s as

3 related to corn and liquid phosphates and banding,

4 we began what we consider today to be BMPs.

5 In '87, we got very, very serious about

6 it.

7 Q. And you said you are not sure if soil

8 testing would be included in, like, a definition

9 of BMPs?

10 A. It is in mine, on my farm, yes.

11 Q. Let me ask you to just maybe list

12 everything that you would consider to be a best

13 management practice that you would use on your

14 farm.

15 A. I think in all of those documents, that

16 a list of the BMPs for my farm were included in

17 there. I could be mistaken. I'll be happy from

18 memory to give you the best list that I can if

19 that's okay.

20 Q. That would be fine.

21 A. I would list BMPs in several different

22 categories. One, and we'll talk about nutrients

23 or fertilizer, specifically phosphate, under that

24 category. I would include soil testing each site,

25 each specific field. If you have a field and it's

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 20 acres, then you do your soil testing based on

2 that entire 20 acres or 40 acres or whatever that

3 field size is and then make a specific

4 recommendation for the amount of fertilizer to be

5 used. Those recommendations are based -- On my

6 farm, they are based on IFAS or the University of

7 Florida recommendations as modified by our

8 experience and our private research that I told

9 you that we began in 1987. So it is site specific

10 testing and then application of fertilizer, the

11 minimum amount that we can that the crop says that

12 it needs.

13 Also under the fertilizers there's a

14 couple things that are common sense. One is that

15 you apply your fertilizers in such a manner that

16 they don't go directly into any waterway or ditch

17 or canal. You park your fertilizer equipment so

18 that if you should have a leak or that type of

19 thing, that it doesn't go into any body of water

20 or canal. Sort of common sense type things, but I

21 believe they are important.

22 Another is in the use of the phosphate

23 fertilizer, to maximize their efficiency by

24 banding rather than broadcasting. It's a commonly

25 accepted cultural practice, and to do that, I

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 believe, is a very good BMP, particularly in

2 vegetable crops.

3 Q. Does anyone really use broadcasting

4 anymore in the EAA that you are aware of?

5 A. We broadcast pot ash and some

6 nitrogen. Our BMP list says that we can't

7 broadcast phosphate, so we have to band the

8 phosphate. Some people's BMP list, I think, says

9 if you do broadcast phosphate, it has to be done

10 with an applicator that shields the canal banks,

11 so that when you go down, none goes in the water.

12 The second category would be our

13 pumping, drainage BMPs. Most of those are simply

14 a function of holding water, retainage, retaining

15 water.

16 Q. On-site?

17 A. On-site.

18 And those are the BMPs that as in my

19 layman's experience of farming in the Everglades,

20 particularly in farming vegetables, that I believe

21 hold the potential for the greatest harm to me as

22 a grower of vegetables. You can't grow vegetables

23 underwater, and if you can't drain it properly,

24 you are not going to be able to make as quality or

25 as high yielding or quality and high yielding crop

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 or maybe any crop depending on the amount of

2 rainfall. To grow vegetables, we simply are going

3 to have to pump and pump on a reliable basis and

4 we've got to be able to provide drainage.

5 Drainage is just as important to us in the

6 Everglades in a vegetable crop as irrigation would

7 be if you were farming sandy land in a desert.

8 Without it, we're not going to successfully grow

9 vegetables.

10 Q. Okay. I'm not sure that I understand

11 exactly that last part that you are testifying

12 to.

13 Basically you are saying that pumping

14 practices in general can be categorized as a best

15 management practice; is that correct?

16 A. That is correct.

17 Q. And it's your opinion that certain

18 pumping practices may be harmful to vegetable

19 growing? Is that what you are trying to say?

20 A. No. Most of the BMPs on pumping

21 practices are based on retaining water. You can

22 pump a certain amount of rainfall, etcetera,

23 etcetera, so much. You can't pump the water down

24 but so low, then you have to turn off the pump.

25 Certain of those things, if not carried to an

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 extreme, may still allow us to still grow

2 vegetables, but I'm very concerned the way our

3 BMPs are written that we will be able to

4 sufficiently drain our vegetable crops, okay, to

5 be able to continue to produce the high quality

6 product that the marketplace demands that we place

7 in the marketplace.

8 If you grow corn and it stays too wet

9 too long instead of making a nice ear that a

10 person would like to buy in the grocery store and

11 take home and eat, you get a little nub and it's

12 only half filled out to the tip and it's terrible

13 and it's bad and chain stores won't buy that type

14 of product.

15 If you take away or too severely

16 restrict that pumping, you take away the ability

17 to produce vegetable crops.

18 Q. Have you done any work to quantify

19 these types of practices that you are concerned

20 may be harmful? In other words, have you looked

21 at a particularly written BMP and said, "This is

22 harmful because it does not allow me to pump 'X'

23 number of gallons of water off my property"?

24 A. We've gone through the BMPs as we've

25 each had to develop the BMPs for our own specific

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 farms and we tried as best we could to make sure

2 my BMP on my farm or farmer X's BMPs on his farm,

3 individually we tried to word them and structure

4 them in such a way that we hope that we can still

5 successfully farm under that scenario. With

6 absolute certainty, I can't say that we can and I

7 can't say that we can't and I have not done any,

8 quote, scientific type research to quantify what

9 is and what isn't. The only thing there, again,

10 layman's experience and many years of dealing with

11 these. We're hoping very strongly that we can.

12 MS. STARK: Let's mark this as Five.

13 (The document referred to was

14 thereupon marked as Government's

15 Exhibit Number Five for

16 Identification, a copy of which is

17 attached hereto.)

18 BY MS. STARK:

19 Q. I show you what's been marked as

20 Exhibit Five. These are some pages that we

21 received by fax last week from your counsel with a

22 cover letter stating that these were several pages

23 of pumping data related to Pioneer Farm Number Two

24 for the year 1991 and 1992.

25 Can you explain what this pumping data

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 is demonstrating?

2 A. I'll try.

3 Q. Okay.

4 A. I stated earlier that from September,

5 '91 through August, '92, and this does appear to

6 be the data from that time period of Pioneer

7 Number Two, I can't swear to it, but it appears to

8 be, we installed a monitor that would meet the

9 District's criteria for an automatic sampling

10 monitoring station. We installed it in exactly

11 the same location as the monitor was installed in

12 the Sugar Cane League and Water Management

13 District study in '76-'77, same farm, same exact

14 location on the farm, right where the water came

15 through, a culvert structure, and started

16 sampling. It was a flow meter type sampler. I

17 mean, where you could pull a sample and make a

18 composite, and it pulled a sample on different

19 time frames that you could put in the little

20 computer on the thing, and we started on some

21 relatively short time frames, like, I think, every

22 hour or so, and it got so doggone expensive that

23 we went to longer intervals. Anyway, it was on a

24 totally voluntary basis 16 months ahead of when

25 the District required it by rule or law or

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 whatever you want to call it and certainly way

2 ahead of the time curve for anybody doing this

3 type of thing. We made an attempt, the very best

4 attempt we could, through Mike Lockhart,

5 consultant, to sample our water for a full year

6 with recording rainfall, etcetera, etcetera, to

7 try to determine the phosphate load and the

8 concentrations in 1991 and '92 as compared to what

9 was done in 1976 and 1977.

10 Now, during this time frame, September,

11 '91 through August, '92, we did not operate our

12 pumps as we always historically had. There

13 weren't any pumping best management practices

14 published as such at that point in time, but what

15 we did is tried to operate it so we didn't have to

16 pump any more -- We didn't try to overdrain or

17 overpump.

18 Q. Let me stop you right there. I'm

19 sorry. You said there were no pumping practices.

20 In '91-'92 you are referring to or

21 '76-'77?

22 A. No. In '91-'92, there were discussions

23 about lists, but it was 16 months before we had

24 the list that the Water Management District wanted

25 us all or some variation of that list that all of

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 us agreed in our permitting process that we had to

2 start monitoring either in '94 or in '93,

3 depending on whether you were early baseline or

4 not. Those pumping things, you couldn't go to the

5 District and say, "Give me a list of your pumping

6 practices or recommended pumping BMPs. We'd like

7 to operate our farm for a year and see." You

8 couldn't do that. It didn't exist.

9 Q. So how did you determine your pumps?

10 A. I simply told my people operating the

11 pumps for this one-year period, try not to pump

12 any more than you have to. If your land is wet

13 and you can't plant or can't harvest or cultivate

14 or do the cultural things we need to do, then

15 definitely you need to run the pumps and try to

16 dry the place out and get to farming, but if it's

17 not wet like that or we haven't had any antecedent

18 rainfall, wait until you get some rain. Don't

19 start pumping just because the weatherman says

20 this afternoon you have a 90 percent chance of

21 rainfall, and that's been a pretty common

22 practice. Historically, if you thought it was

23 going to rain or you thought it was going to get

24 too wet or you had the high percent of possibility

25 because of predicted rainfall, often you would

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 pump.

2 That's all I did. I said, "Don't pump,

3 guys, any more than you feel absolutely necessary

4 and let's see what happens."

5 Now, I'm sure there were times when it

6 rained that maybe even under my BMPs right now I

7 may have pumped during this time period when now I

8 couldn't. Specifically I can't give an example,

9 but what we were trying to do was say all right.

10 We're going to have to live with some kind of list

11 like that one of these days it appears. What can

12 we do? Let's see what this farm looks like now

13 compared to '76-'77. Let's try to build up as

14 much historical data as we can.

15 There was not another vegetable site in

16 the Everglades that had this degree of data

17 collected on it in '76. They only did spot

18 samples. Here we had an opportunity to look at a

19 farm in '91-'92 when we had the data in '76 and

20 '77. And bear in mind, I testified earlier that

21 sometime in the '70s, we started doing banding of

22 liquid polyphosphates on our sweet corn.

23 Somewhere in that time frame, also, we quit

24 broadcasting all our phosphates for our leafy

25 vegetables at that time. I can't tell you with

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 any degree of certainty.

2 Q. My question was going to be do you

3 recall if it was before or after the '76 study?

4 A. Before '91. We started a lot of those

5 fertilizer type of practices before '91-'92.

6 Q. What about before the '76-'77 study?

7 A. Maybe a little -- Maybe some

8 polyphosphate on sweet corn. That would be all

9 banding.

10 Q. Banding?

11 A. Banding on corn like at very low

12 rates. We got that idea from a professor at the

13 University of Illinois and I can't recall his name

14 and I can't tell you what year I talked to him.

15 Anyway, this then presented this data

16 and so it's an attempt to look at concentrations

17 versus '76-'77 and loading in '91-'92 versus

18 '76-'77 and also in the amount of rainfall.

19 In '91-'92, the rainfall was somewhere

20 around 56, 56 and a half inches. I don't see that

21 on here, but I recall that. It may be here and

22 I'm just missing it. And the rainfall, I believe,

23 in the Shannon Sugar Cane League study was like 42

24 inches. So we had a lot more rainfall in

25 '91-'92.

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 I hope that answer is sufficient. You

2 may have asked me --

3 I don't mean to get you off the

4 subject. You may have asked me how do I

5 interpret --

6 Q. That would be the next question.

7 A. I think you did say that, so I'm trying

8 to be responsive to your question, and the

9 concentration of phosphate -- The total

10 concentration here is lower than it was in

11 1976-77. I think it was .46 in '76-'77, and

12 that's in ppm, and it was .303 on this '91-'92, so

13 our concentrations were down. Our total phosphate

14 loading and pounds of P discharged was more. I

15 believe it was 4,900 and something in '76-'77 and

16 it's 5,673 here, but I believe that is a function

17 of rainfall, the difference between 42 inches and

18 almost 57 inches of rainfall.

19 Q. All right.

20 A. The harder the rainfall event, the more

21 you have to pump, and if you look at all of this

22 data, under heavy, hard pumping events, your

23 concentration goes up if you have to pump, and

24 this is layman's terms, but if you have to pump a

25 long time, and it's real hard to try to get the

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 water off to save your crop, then the

2 concentrations go up. Also, the more rainfall,

3 the more physical volume of water you pump, so

4 even though you have reduced concentration, the

5 total volume, your total loading, could end up

6 being more. That's about all I see from this

7 one.

8 Q. Statistics not being my strong suit,

9 parts per million is the way your data is listed

10 here for total P, total phosphorus.

11 A. No, that's concentration.

12 Over here (indicating) is your pounds

13 of P.

14 Q. Right. When we're looking at

15 concentration, we're looking in parts per

16 million.

17 When you do the calculation to parts

18 per billion, for the '91-'92, it would be 303

19 parts per billion, correct?

20 A. Statistics is not my strong point

21 either.

22 I'm not sure. All I know is what's

23 here and it's .303 parts per million.

24 Q. Okay. Let me ask you a little bit

25 about rainfall. You mentioned at one point in

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 your answer, I think, that you did do some

2 collection of rainfall; is that correct?

3 A. I don't see it on this data, but the

4 rainfall was, during that time period, was

5 somewhere between 56 and 57 inches, and I don't

6 see it on this sheet.

7 Q. Were you collecting rainfall strictly

8 to determine how many inches fell during the year

9 or did you also test the rainfall for phosphorus?

10 A. We did not test the rainfall for

11 phosphorus, only as a record of how much it rained

12 and correlated that to how much water you

13 discharged so you get a flow weighted discharge to

14 determine the P load. We did not test the water

15 from the rainfall and I can't recall whether we

16 tested the water that we would have let back in

17 the farm for irrigation purposes.

18 Q. When you say let back in the farm --

19 A. Open a gate and open the water for

20 irrigation purposes.

21 Q. So you did not test that water?

22 A. I don't recall whether we did or not.

23 Q. So essentially this data comes from a

24 particular location and I think I read somewhere

25 in your documents that it's basically right before

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 the pumping station?

2 A. Exactly.

3 Q. So any water that's being backpumped

4 into your property for irrigation is not tested;

5 is that what you are saying?

6 A. We'll either be pumping or either be

7 draining or irrigating, but not at the same time.

8 If we're running the pumps, discharging

9 the water, then that's what this data is. I don't

10 believe there's any data on this that shows the

11 water quality when we had to irrigate or take

12 water out of the Water Management District canal

13 and put it back on the farm.

14 Q. So you would not be providing any

15 testimony concerning what you believe the

16 phosphorus content of rain to be in the Everglades

17 Agricultural Area; is that accurate?

18 A. I don't think I would, no.

19 Q. You've not done any other testing in

20 some other area?

21 A. Of the rainwater?

22 Q. Of the rainwater.

23 A. No, I haven't.

24 MS. STARK: Can we take a short break?

25 MR. SMITH: Certainly.

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 (Thereupon, there was a short

2 break taken in the proceedings.)

3 BY MS. STARK:

4 Q. We were talking about this Government's

5 Exhibit Five before we took our break and I'm

6 going to ask you just some clarifying questions

7 about what this data is showing.

8 The first column is obviously

9 self-explanatory, the date and then the time, and

10 the third column, it looks like it's pump and a

11 number sign and then on.

12 A. Pump number on. This station has three

13 pumps and we numbered them pump number one, number

14 two and number three.

15 Q. They are all at the same station?

16 A. Yes. The pump houses are side by side,

17 but all of the water comes through the same

18 culvert where the monitoring device was.

19 To get this thing flow weighted, we had

20 to try to determine how much volume of water we

21 were pumping. We took our best estimates,

22 guesses. They weren't calculations at that time.

23 We had not hired engineers to calculate the

24 pumps. Now we have. And this has been adjusted

25 to show the proper pump calibrations, so to get

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 the amount of water we were pumping, we had to

2 know which pumps were on, pump different amounts

3 of water and then the time period that they

4 pumped.

5 Q. When you say the time period that they

6 pumped, the times that are being shown is just for

7 each instance, it appears to just be that

8 particular time.

9 Is that the time that the pump was

10 turned on or turned off or do you know what that

11 time represents?

12 A. Apparently that is the time --

13 No, but I think it appears these were

14 three-hour composites right here. I think that

15 got changed somewhere through this, so this

16 three-hour composite, that time was either the

17 beginning, the end, the middle or something, I

18 suppose, and number one pump was on and we

19 estimated that 45 mg, meaning gallons, I guess,

20 anyway, of the volume that was pumped in this time

21 frame.

22 This was the concentration and then

23 this would be pounds of P205 that would be

24 discharged according to that time frame. I didn't

25 set that up. Mr. Lockhart set this up, but that's

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 the way I interpret it.

2 Q. Okay. My next question was Mike

3 Lockhart compiled this, all this data, for you?

4 A. Yes, he did. He and my people

5 installed the monitoring system. He was

6 responsible for the monitoring station, collection

7 of samples, having them tested by whomever

8 tested. He was on a consulting basis and he was

9 being paid to provide this. My farm people did

10 not provide this data.

11 Q. So Mike Lockhart's job basically then

12 was to obtain the samples, but he did not himself

13 test them for the phosphorus concentration; is

14 that correct?

15 A. No, he did not do the testing. Memory

16 tells me he talked, I believe it was to three

17 laboratories. I can't tell you which ones they

18 are. I don't remember the names. And he did,

19 also, some split sampling where he sent it to more

20 than one laboratory and I believe that he also

21 sent some of the split samples to the Water

22 Management District, and I believe he selected --

23 The lab, I think, this is right by --

24 I think he selected the lab that the

25 samples, after several split samples, correlated

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 more with the District's lab.

2 Bear in mind again, this is 16 months

3 ahead of the time curve. There wasn't an approved

4 list of certified labs that the State or Water

5 Management District had approved to do the

6 sampling. We had to do the best we could to make

7 it within the limits and to try to do the most

8 comparable data that we could and that was what we

9 did.

10 Q. These pages don't have numbers

11 themselves, but up at the top --

12 A. The fax.

13 Q. The fax has a number. The one that

14 says Page Five on the fax number, on the 26th of

15 November of 1991, rather than having a pumping

16 station location, it says irrigation water.

17 A. It's where they open the gate, water

18 flowed in through the Ocean Canal back through the

19 culvert where the monitoring station was. This

20 would be the concentration --

21 Q. Just so we make a good Record, you have

22 to let me finish my question.

23 A. Sorry.

24 Q. No problem, but when we go back and

25 read it, I need to have a complete question.

JACK BESONER & ASSOCIATES

1499 W. Palmetto Park Rd, Suite 216

Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507

1 This is, then, your irrigation water

2 coming back in?

3 A. Yes.

4 Q. And on Page Six, you stated a few

5 minutes ago that you thought that the three-hour

6 composites changed. There it says, "Begin 12-hour

7 composites."

8 That would then in your recollection be

9 the change in the composite times at that point?

10 A. Yes.

11 Q. So starting in April of '92, you went

12 to a 12-hour composite?

13 A. Instead of the three.

14 Q. Explain to me what that means in

15 layman's terms.

16 Is that something about how often the

17 sampling was taken, over a three-hour period or a

18 12-hour period?

19 A. Yes, ma'am.

20 The sampler is solar powered. It's a

21 battery, self-contained piece of equipment that's