1 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. ) 23 DEPOSITION OF JOHN HUNDLEY 24 25 JACK BESONER & ASSOCIATES 1499 W. Palmetto Park Rd, Suite 216 Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507 2 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. 4 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. 10 - - - - - - - 11 APPEARANCES: 12 ON BEHALF OF THE USA: 13 U.S. ATTORNEY'S OFFICE 14 99 N.E. Fourth Street, Third Fl. Miami, Florida 33132 15 BY: Kathy Stark, AUSA 16 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. 21 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 3 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 4 5 E X H I B I T S 6 For Government: 7 #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 25 JACK BESONER & ASSOCIATES 1499 W. Palmetto Park Rd, Suite 216 Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507 4 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 5 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 6 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 7 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 8 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 9 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 10 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 11 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 12 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 13 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 14 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 15 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 16 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 17 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 18 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 19 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 20 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 21 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 22 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 23 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 24 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 25 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 26 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 27 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 28 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 29 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 30 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 31 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 32 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 33 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 34 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 35 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 36 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 37 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 38 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 39 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 40 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 41 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 42 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 43 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 44 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 45 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 46 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 47 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 48 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 49 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 50 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 51 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 52 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 53 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 54 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 55 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 56 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 57 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 58 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 59 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 22 computerized and you can set it so that -- There's 23 a little pump in it and your collection tube is 24 floating right there in the middle of the culvert 25 where the water is flowing through and you can JACK BESONER & ASSOCIATES 1499 W. Palmetto Park Rd, Suite 216 Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507 60 1 dial it in as to how often you want to pull up 'X' 2 cc of water. If you wanted to pull that up every 3 15 minutes over a three-hour period, then that's 4 one sample, then the next three-hour period. It 5 may pull water every three hours. You can set it 6 to do it like you would do it. So the 12-hour 7 means that there were several times the water was 8 sampled and it's put into a 12-hour composite time 9 frame. 10 Q. So you would have at the end of the 12 11 hours one single sample and it would have water 12 that came from several different draws? 13 A. Blended. 14 Q. Over that 12-hour period? 15 A. That's correct. 16 Q. Makes perfect sense. 17 MS. STARK: Let's mark this as Six. 18 (The document referred to was 19 thereupon marked as Government's 20 Exhibit Number Six for Identification, 21 a copy of which is attached hereto.) 22 BY MS. STARK: 23 Q. I'm showing you what we've marked as 24 Exhibit Six. This is the first page of the 25 documents that were sent to us as a package by JACK BESONER & ASSOCIATES 1499 W. Palmetto Park Rd, Suite 216 Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507 61 1 your counsel and you'll see that it bears a Bates 2 stamp number of a whole bunch of zeros and a one 3 with your initials. 4 Can you identify this document for me? 5 A. Excuse me. This says D.J.H. That 6 wouldn't be my initials. 7 Q. Okay. I think that your initials are 8 simply J.H.? 9 A. J.L.H. If I initial something, that's 10 the way I do it. 11 Q. For some reason, I thought the 'D' may 12 have referred to district. 13 In any event, these are the documents 14 that would correlate to the documents that were 15 sent to us and if you could identify this document 16 for me and tell me what it is. 17 A. Okay. The Pioneer Number Two Farm 18 again. It's the water monitoring summary for the 19 data submitted to the South Florida Water 20 Management District as required in our permit, 21 January 1, '93 through 12/27/93, the periods on 22 it. This is from the automatic sampling station, 23 the very same station we just talked about in the 24 '91-'92 study. The period listed is two-week 25 periods, 1/1/93 through 1/15/93. Bear in mind on JACK BESONER & ASSOCIATES 1499 W. Palmetto Park Rd, Suite 216 Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507 62 1 this study we started out at three-hour 2 composites. Now we're on 14-day composites. 3 Q. Is that dictated by your permit? 4 A. That was being responsive to the Water 5 Management District, yes. The more samples you 6 have to take -- 7 I mean, this water sampling is horribly 8 costly, so Mr. Lockhart and my former farm 9 manager, John McKinstry, they dealt directly with 10 the District in the permitting process and 11 apparently this met District criteria, once every 12 15 days or twice a month. 13 Then it shows again the total P in 14 parts per million. The P load in kg of P, and 15 this has the rainfall in inches recorded. This is 16 familiar to me, not only because of the dates, but 17 I remember the flow weighted parts per million and 18 phosphorus, .346, and I remember the rainfall at 19 57, almost 58 inches. 20 At the bottom part of the single sheet 21 shows the CH2MHill study. That is the common term 22 for the Sugar Cane League and Water Management 23 study of '76-'77, and it shows that the annual 24 phosphorus load for '76-'77 was 4,940 pounds of 25 P. Total rainfall is 42.9 inches, and the average JACK BESONER & ASSOCIATES 1499 W. Palmetto Park Rd, Suite 216 Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507 63 1 phosphorus concentration and, I believe, flow 2 weighted was .460 parts per million. This shows a 3 comparison then of the first year, the year of 4 1993, and establishing Hundley Farms Pioneer 5 Number Two's early baseline, what my phosphorus 6 concentration and what my phosphorus load of 7 8339.5 pounds was in that given year given 57 8 inches of rainfall. 9 If you look as related to the CH2MHill 10 study, you'll see the phosphorus loading weighed a 11 lot more. In other words, more pounds of P in '83 12 than in '76 or -- 13 MR. SMITH: '93. 14 THE WITNESS: Yes. Excuse me. 15 You see the total rainfall in the Hill 16 study. That was a very substandard year 17 rainfall-wise. I think the average is, like, 56 18 inches for our area. So you'll see we did not 19 have to pump anywhere near the volume of water in 20 '76-'77 as we did in '93. 21 You'll also see that the phosphorus 22 concentration was considerably higher, .460, as 23 compared to .346. So our phosphorus concentration 24 and water went down by 35, 40 percent, but our 25 actual load of P went up, and that is a function JACK BESONER & ASSOCIATES 1499 W. Palmetto Park Rd, Suite 216 Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507 64 1 of the very significant amount of additional rain 2 that we had to drain. 3 As I testified earlier, you've got 4 vegetables or crops out there. A 40-inch rainfall 5 a year doesn't cause you a lot of problems unless 6 ten inches of it come in one event. In the 7 heavier rainfall years, that's the years that the 8 loading is bound to go up. 9 This shows then '93, which is public 10 record, it's part of my permit at the District, as 11 compared to the CH2MHill study, '76-'77. If you 12 take this and look at it with Exhibit Five, 13 Exhibit Five was the voluntary year, '91-'92 that 14 we did. All three of them were 12-month periods 15 of record, all three sets of data. 16 BY MS. STARK: 17 Q. Okay. This document, Exhibit Six, 18 although it's kind of standing alone in the packet 19 that we received, was this, in fact, a part of a 20 larger document that you sent to the District? 21 A. No. Mr. Lockhart, I believe, prepared 22 this. I did not. This data would have gone to 23 the District, I believe, in computer form. 24 Electronic form, I believe, is how we have to 25 report it. I believe it's either monthly or JACK BESONER & ASSOCIATES 1499 W. Palmetto Park Rd, Suite 216 Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507 65 1 quarterly, I'm not sure which, because he handles 2 all of that under contract for me, and I don't 3 think that he would have sent the CH2MHill 4 information on the bottom of the sheet to the 5 District, so I don't think the data was supplied 6 to the District in the form this sheet shows. 7 This data was, but I don't think it was put 8 together like that. I don't know that for sure, 9 but I would have been surprised. I would have 10 seen no reason for him to do that. 11 Q. This was basically for your own 12 edification showing the difference between '93 and 13 '76? 14 A. I believe so, yes. 15 There's one other thing -- 16 MR. SMITH: Let her ask another 17 question. 18 THE WITNESS: Okay. 19 BY MS. STARK: 20 Q. Was there something else in this sheet 21 that you wanted to explain? 22 A. No, there was not. 23 Q. I noticed that the phosphorus load, 24 there's a change from pounds of phosphorus to 25 kilograms of phosphorus. JACK BESONER & ASSOCIATES 1499 W. Palmetto Park Rd, Suite 216 Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507 66 1 Is that something that's been dictated 2 by the District as well? 3 A. I do not know. 4 Q. You mentioned that 42.9 inches of rain 5 over a year wouldn't give you as much problem as a 6 higher rainfall unless ten inches of it came in 7 one event. 8 Do you recall in '76 if there was a 9 situation where you had to do a lot of pumping? 10 A. No, I do not, I don't recall, and we 11 don't maintain those records. 12 Q. Okay. 13 MS. STARK: Mark that as Seven. 14 (The document referred to was 15 thereupon marked as Government's 16 Exhibit Number Seven for 17 Identification, a copy of which is 18 attached hereto.) 19 BY MS. STARK: 20 Q. The next document that we have for you 21 we've marked as Exhibit Seven. It appears to be a 22 permit that's been filed with the Water Management 23 District for Hundley Farms, Incorporated. 24 Did you prepare or did you direct that 25 this permit be prepared? JACK BESONER & ASSOCIATES 1499 W. Palmetto Park Rd, Suite 216 Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507 67 1 A. I directed that it be prepared. Mr. 2 Lockhart and Mr. McKinstry did the actual 3 preparation of it. 4 Q. Is Mr. McKinstry someone who works with 5 Mr. Lockhart? 6 A. No. He used to be my farm manager. 7 He's no longer employed with me. 8 Q. And the issue date is June 10th of 9 1993. 10 Is that when this report was prepared 11 or was it prepared prior to that or subsequent to 12 that? 13 A. It was prepared, I'm confident, prior 14 to that. I believe that's the date the District 15 actually -- 16 Q. Issued the requested permit? 17 A. Yes. 18 Q. Can you explain to me what these 19 limiting conditions on the second page of the 20 document, what they refer to? 21 Is this something that Mr. Lockhart 22 prepared himself or is this something that the 23 District requires you to do? 24 A. I believe this is something the 25 District requires. In fact, I'm sure of that. JACK BESONER & ASSOCIATES 1499 W. Palmetto Park Rd, Suite 216 Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507 68 1 Q. On Bates stamped Page Number Four, 2 which is the third part of the document, in the 3 center of the page, it says, "Best management 4 practice conditions", and Number Five says that, 5 "The permittee", which would be Hundley Farms, 6 "shall implement all BMPs described in the permit 7 application and staff report by January 1, 1994." 8 In fact, have they all been implemented 9 as of January 1, 1994? 10 A. Yes, I believe they have. 11 Q. And do you recall what best management 12 practices were required to be implemented by 13 January 1st of '94? 14 A. I'll give them to you to the best of my 15 memory. 16 Fertilizer BMPs, soil testing to 17 specific recommendations, banding of all 18 phosphate, placement of trailers or fertilizer 19 equipment not near water, so if you have a leak, 20 it won't go in the water. I think I mentioned 21 already banding of P. 22 Pumping BMPs. If there has been no 23 antecedent rainfall within 'X' number of hours, 24 you have to have an inch of rainfall before we can 25 start our pumps. I think duration of pumping is JACK BESONER & ASSOCIATES 1499 W. Palmetto Park Rd, Suite 216 Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507 69 1 open until the fact that you get the farm drained, 2 I believe. I'm a little fuzzy on that one. 3 There was one, I believe, that had to 4 do with little, small, field lateral ditches, 5 which I think they had to be cleaned and 6 maintained. Our main draw canals are the large 7 canals that the limestone rock are dug out of that 8 collect -- that the field ditches collect in that 9 then go to our pump station. There's a 10 requirement that on a periodic basis, I can't 11 remember the time frame, but on a periodic basis 12 that the draw canals be cleaned or dredged 13 mechanically to get sediment out of the bottom of 14 them. That process has been completed on one of 15 the three farms and is about half complete on the 16 second one and then we'll move to the third one as 17 soon as we complete the second, so that BMP is 18 under way. That's all I can remember right off 19 the top of my head. 20 Q. When you say it's been completed on one 21 farm, is that Pioneer Farm Number Two? 22 A. No, it's not. It's half done on 23 Pioneer Number Two. It's completed on 20 Mile 24 Bend Farm. 25 Q. Now, of the things that we've just JACK BESONER & ASSOCIATES 1499 W. Palmetto Park Rd, Suite 216 Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507 70 1 mentioned, soil testing obviously you began 2 seriously in 1987, correct? 3 A. No. We've done soil testing since the 4 early to mid-'70s. 5 Q. Okay. So even earlier than '87? 6 A. Yes. Definitely. 7 Q. Is that done on a seasonal basis or 8 yearly basis? 9 A. Crop by crop. Anytime you go to plant 10 a crop, we do that, with the exception of 11 radishes. We do it every two or three crops on 12 radishes. 13 Q. I notice in the documents you plant 14 radishes quite frequently through the year; is 15 that right? 16 A. Frontier Produce, another one of my 17 companies, actually grows the radishes, but they 18 are grown sometimes on Hundley land, yes. 19 Q. Actually, my question was referring to 20 the fact that you can get several crops of 21 radishes in a year, right? 22 A. About four and a half, from September 23 through late May. 24 Q. So you don't soil test with each one of 25 those crops? JACK BESONER & ASSOCIATES 1499 W. Palmetto Park Rd, Suite 216 Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507 71 1 A. No. Probably generally twice a year on 2 radishes. 3 Q. Let's sort of switch gears for a second 4 and talk about your crops for a second. I guess 5 we can start with sugar, because you said that 6 probably the largest volume of Hundley Farms' land 7 is in sugar production currently; is that 8 correct? 9 A. That's correct. 10 Q. And how often would you soil test on 11 your sugar crops? 12 A. We soil test our cane once before we 13 plant the cane and each successful stubble crop, 14 or an easy answer is once a year. That is in 15 excess of what the experimentation really 16 recommends; that it be done on a once every 17 rotation or once every four years and do a 18 fertilizer program based on the life of the 19 stubble, but we do ours every year. 20 Q. About how many stubble crops do you get 21 on average after a planting? 22 A. On the average, two and a half, two on 23 some fields, three on some fields. It depends on 24 how wet it is at harvest, how many bad freezes or 25 killing freezes we have on them. Some varieties JACK BESONER & ASSOCIATES 1499 W. Palmetto Park Rd, Suite 216 Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507 72 1 are more vigorous, re-growers, than others, and 2 just a whole series of conditions. 3 Q. Ever more than three crops? 4 A. On the land that I farm, which is 5 basically characterized to middle to cold land, 6 there may have been an instance of three or four 7 stubble crops, but generally speaking, no. 8 Q. Two to three generally? 9 A. (Witness motioned his head up and 10 down.) 11 Q. And when you plant your sugar crop 12 initially and you do your soil testing, then how 13 do you go about fertilizing that crop when you 14 start out? What procedures do you use? 15 A. Prior to Mr. Lockhart or his employees 16 pulled the samples, we used A&L laboratories. He 17 makes a recommendation. 18 We now put the fertilizer out in the 19 furrow banded if there's phosphate in it. If it's 20 just pot ash and micronutrients, then we can still 21 broadcast by our BMP. 22 Prior to January 1st of '94, we could 23 have still broadcast the P. As a practice, where 24 we've been able to get the equipment and to line 25 it up that is done where a local contractor comes JACK BESONER & ASSOCIATES 1499 W. Palmetto Park Rd, Suite 216 Boca Raton, FL 33486 (407)750-8505 Fax: (407)750-8507 73 1 out or applicator and applies the fertilizer where 2 he's available and we can get him and it fits in 3 the schedule, we've tried to band it for several 4 years. 5 Q. Is it often that you would not be 6 applying phosphorus fertilizers on a new crop of 7 sugar cane? 8 A. Historically on Pioneer Number Two, 9 yes, because the fertilization of phosphate for 10 leafy vegetables requires a lot higher levels of 11 phosphate than sugar cane and that's one of the 12 things that we did most extensively beginning in