1                 STATE OF FLORIDA
          DIVISION OF ADMINISTRATIVE HEARINGS
 2 
   SUGAR CANE GROWERS COOPERATIVE OF :
 3 FLORIDA, a Florida Agricultural   :
   Cooperative Marketing Association :
 4 ROTH FARMS, INC., AND WEDGWORTH   :
   FARMS, INC.,                      :
 5                                   :
   and                               :
 6                                   :
   FLORIDA SUGAR CANE LEAGUE, INC.;  :
 7 UNITED STATES SUGAR CORPORATION;  :
   and NEW HOPE SOUTH, INC.,         : CASE NOs.
 8                                   : ---------
   and                               :  92-3038
 9                                   :  92-3039
   FLORIDA FRUIT AND VEGETABLE       :  92-3040
10 ASSOCIATION, LEWIS POPE FARMS,    :
   W.E. SCHLECHTER & SONS, INC., and :
11 HUNDLEY FARMS, INC.,              :
            Petitioners,             :
12                                   :
   vs.                               :
13                                   :
   SOUTH FLORIDA WATER MANAGEMENT    :
14 DISTRICT, an Agency of the State  :
   of Florida.                       :
15          Respondent,              :
                                     :
16 MICCOSUKEE TRIBE OF INDIANS OF    :
   FLORIDA, the UNITED STATES OF     :
17 AMERICA, and FLORIDA DEPARTMENT   :
   OF ENVIRONMENTAL REGULATION, and  :
18 the FLORIDA WILDLIFE FEDERATION,  :
           Intervenors.              :
19 __________________________________:
                           West Palm Beach, Florida
20                         March 18, 1993
                           Thursday, 9:15 a.m.
21 
22                     VOLUME I
23                   DEPOSITION OF
24                 ANDERSON RACKLEY

                                                 Page 1

 1 APPEARANCES:
   
 2     PEEPLES, EARL, & BLANK
       By:  WILLIAM L. EARL, ESQUIRE, and
 3          RICHARD A. RUSSELL, ESQUIRE,
       Appearing on behalf of the Petitioners.
 4 
       LAW OFFICES OF SIMMONS & SOLOMON
 5     By:  LYNN D. SOLOMON, ESQUIRE,
       Appearing on behalf of the Respondent.
 6 
       UNITED STATES ATTORNEYS OFFICE,
 7     SOUTHERN DISTRICT OF FLORIDA
       By:  ROBERT A. ROSENBERG, ESQUIRE,
 8     Appearing on behalf of the Intervenors
   
 9 
   
10 
                       I N D E X
11 
   WITNESS                                PAGE
12 
   ANDERSON RACKLEY
13 
     Direct Examination by Mr. Rosenberg    3
14 
   
15 
   
16                  E X H I B I T S
   
17 Government's No. 1 for Identification    6
   Government's No. 2 for Identification   65
18 Government's No. 3 for Identification   92
   Government's No. 4 for Identification   93
19 Government's No. 5 for Identification  102
   Government's No. 6 for Identification  147
20 Government's No. 7 for Identification  163
   
21 
   
22 

                                                 Page 2

 1          Deposition of ANDERSON RACKLEY, a
 2  Witness herein, taken pursuant to the Rules and
 3  Notice heretofore filed before SHELA K.  ELLIS,
 4  C.S.R, R.P.R, and Notary Public, State of
 5  Florida at Large, at One Clearlake Center,
 6  Suite 1403, 250 Australian Avenue South, West
 7  Palm Beach, Palm Beach County, Florida, on the
 8  18th day of March, 1993, commencing at 9:15
 9  a.m.
10                __________________
11 Thereupon:
12                 ANDERSON RACKLEY
13  a Witness herein, appearing at the instance of
14  the Intervenors and having been first duly
15  sworn by the court reporter and cautioned to
16  tell the truth of his knowledge as to the
17  within matters, was thereupon examined and
18  testified upon his oath as follows:
19 
20                DIRECT EXAMINATION
21 BY MR. ROSENBERG:
22      Q   Please state your full name, please.
23      A   Anderson Hall Rackley.
24      Q   And they call you Andy?
25      A   That's right.

                                                 Page 3

 1      Q   Mr. Rackley, you are here pursuant to a
 2  notice of deposition duces tecum, am I correct?
 3      A   Yes.
 4      Q   And that notice asked you to produce
 5  various documents, am I correct?
 6      A   That's correct.
 7      Q   And there's four boxes of documents and
 8  they are in response to the subpoena duces
 9  tecum?
10      A   Actually, I think there is 11 boxes.
11      Q   More coming?
12      A   Or 12.
13          MR. EARL:  You have about eight over
14      there now, counsel, and there's a few more
15      coming through the door.
16          The request was so broad, overly broad,
17      actually, that if we erred, it was on the
18      side of providing more than whatever might
19      be responsive.
20          MR. ROSENBERG:  Let me do this, let me
21      go through the questions with you and at
22      the end of the deposition this afternoon,
23      maybe we'll go through the documents, see
24      what we can pare out and what we are going
25      to do and see what the response is.

                                                 Page 4

 1          MR. RUSSELL:  I just put on the boxes --
 2      I have put the paragraphs that they are
 3      responsive to on each box.
 4          MR. ROSENBERG:  I will just ask one
 5      question on the documents, while we are
 6      here.  Is there a privileged list on them?
 7          MR. EARL:  No.  Custom in this case to
 8      date has been that -- the United States'
 9      custom, anyway, has been providing their's
10      several weeks after the deposition had been --
11          MR. ROSENBERG:  All right.  Okay.
12      Q   (By Mr. Rosenberg) Mr. Rackley, I'm
13  going to ask you some questions, and if you
14  don't understand my question, you will please
15  tell me, if you would.  Or if it's spoken too
16  quickly, it's not constructed right, I will try
17  and reconstruct it for you, is that okay?
18      A   Yes.
19      Q   If you don't know something, you can
20  simply say you don't know; is that all right?
21      A   Yes.
22      Q   If you need a break, tell me that, too
23  and we'll take a break.
24          Have you had your deposition taken
25  before in any other matter?

                                                 Page 5

 1      A   Yes.
 2      Q   And when was that?
 3      A   I don't recall the exact time.
 4      Q   How many times have you had your
 5  deposition taken before?
 6      A   Once.
 7      Q   What's your -- Let me ask you a
 8  preliminary question, we asked you to bring a
 9  resume or curriculum vitae, is there one
10  around?
11      A   Yes, it's in there.
12          MR. EARL:  I would like to mark it,
13      counsel, if we are going to talk about it.
14          (Whereupon, an off the record
15      discussion was had.)
16          (Whereupon, Government's Exhibit No. 1
17      for Identification was marked by the
18      reporter.)
19      Q   (By Mr. Rosenberg) Mr. Rackley, you
20  have been employed at the Florida Sugar Cane
21  League since March 1st of 1988?
22      A   That's correct.
23      Q   And you came there from American
24  Cyanamid?
25      A   That's correct.

                                                 Page 6

 1      Q   This Exhibit 1 has an objective
 2  paragraph, first one says, objective.
 3  Responsible position in agricultural sales,
 4  marketing, offering excellent advancement to
 5  senior management.  Why is there an objective
 6  there?
 7      A   It's typical on most resumes.
 8      Q   You are not looking for a job now?
 9      A   No, that was on there when the resume
10  was put together, actually.
11      Q   When was that?
12      A   Prior to joining the Florida Sugar Cane
13  League.
14      Q   This resume is several years old?
15      A   Well, it's been updated to include 1988
16  to present.  I just never changed the
17  objective, because that's where my background
18  was, was in sales and marketing.
19      Q   It says here that you manage a staff of
20  21 people and two offices.  You are the
21  Vice-President/General Manager?
22      A   That's correct.
23      Q   Now, over you -- who is over you in the
24  League?  Who do you report to?
25      A   I report to the board of directors.

                                                 Page 7

 1      Q   You are, in effect, the chief of staff
 2  of the organization?
 3      A   In a manner of speaking, yes.
 4      Q   What departments are there?  In the
 5  staff of 21, what different departments are
 6  there?
 7      A   Well, we have an agricultural research
 8  department or effort.
 9      Q   Who is in that?
10      A   Dr. John Dunckleman is the
11  vice-president of that group.  And then he has
12  one agronomist, according to him, and that's --
13  and then there are four or five people who are
14  stationed over at Canal Point USDA Research
15  Station that work in a joint effort.  They work
16  for the League, but they work in a joint
17  research effort with USDA.
18      Q   And they are under Dunckleman?
19      A   That's correct.
20      Q   What other groups are there behind the
21  staff?
22      A   We still have an environmental effort.
23  Environmental air network, that position, that
24  would have been comparable to Dr. Dunckleman's,
25  is currently open.  And there are currently two

                                                 Page 8

 1  people in that department.
 2      Q   What do they do?
 3      A   Their primary responsibility is to
 4  manage the air network.
 5      Q   What does that mean?
 6      A   It's a network that measures the --
 7  takes air samples periodically.
 8      Q   And those are air samples in the EAA?
 9      A   Primarily in the EAA, and I think we
10  now have a couple stations located just outside
11  of the EAA back toward Wellington.
12      Q   These air samples, are these because of
13  burning; field burning?
14      A   They are just simply so we can
15  demonstrate so that the quality of the air
16  where we farm is good quality.
17      Q   What are they testing for, testing for
18  the results of field burning or results of mill
19  operation?
20      A   They are not testing for either one of
21  those specifically, they are just testing to
22  see what the quality of the air is.  I don't
23  know the parameters.  I can't give you the
24  parameters.
25      Q   Who are the individuals that work in

                                                 Page 9

 1  that department?
 2      A   Mike Bellamy is the technician.  And my
 3  mind goes blank.  Jeff Platt works for him.
 4      Q   And they make -- do they make periodic
 5  reports to you?
 6      A   They make periodic runs and collect the
 7  information.
 8      Q   Who do they report to?
 9      A   You mean functionally?
10      Q   Yes.
11      A   Currently they report to me since they
12  don't have a person in that position.
13      Q   The who do they produce those reports
14  to?
15      A   They don't actually produce any
16  reports.
17      Q   How do you know what the air quality
18  is?
19      A   We have a consulting firm that
20  information is turned over to.
21      Q   Who is that?
22      A   CH2 MHILL.
23      Q   The agronomist department, the
24  Dunckleman department, that has seven people?
25      A   As I recall.  I'm not certain exactly

                                                 Page 10

 1  how many of the positions are actually filled
 2  at the USDA Canal Point Station.
 3      Q   More or less, six or seven?
 4      A   Yes.
 5      Q   Okay.  And that's a research department
 6  to research sugar cane?
 7      A   It's a department that's primarily
 8  responsible for looking at ways to improve
 9  sugar cane production.
10      Q   And they would do what, then, in order
11  to do that?
12      A   Well, Dr. Dunckleman would direct --
13  actually, would look for research proposals
14  that would benefit sugar cane production, he
15  wouldn't actually do the research.
16      Q   All right.  Would they contract out,
17  for example, to someone to get information on
18  flood tolerance strains of sugar cane?
19      A   All of the research that we do
20  currently on ag. research, as I recall, is
21  through grants made to individuals or
22  universities or other agencies.
23      Q   And Dr. Dunckleman's department would
24  monitor those grants, how it is coming along,
25  with whatever entity they have contracted with?

                                                 Page 11

 1      A   That's correct.
 2      Q   What's the agronomist environmental
 3  effort?  Is there a third staff operation?
 4      A   Not currently.  We do have a public
 5  relation effort that I primarily look after
 6  myself.  So that would be it.
 7      Q   How many people are employed in the
 8  public relations?
 9      A   Just myself.
10      Q   Says you supervise 21 people in two
11  offices.  I count nine so far.
12      A   Well, the 21 people -- actually that
13  number now is 16, we have just reduced the
14  staff very recently.  I just realized that 21
15  was still there.  There's a total of 16 people
16  in the Sugar Cane League.
17      Q   You have the agronomist, environment
18  effort section, public relations section and no
19  other section?
20      A   I have an office administrator who
21  reports to me who is also my secretary.  We
22  have one other secretary/receptionist and
23  bookkeeper, and then we have three people in an
24  office in Washington D.C.
25      Q   What does the Washington office do?

                                                 Page 12

 1      A   They are primarily there to work and
 2  keep our industry informed about farm programs,
 3  farm bills.
 4      Q   What are the names?
 5      A   Dalton Yancey, Elma -- her last name
 6  escapes me -- and Mike Morton.
 7      Q   What is Mr. Yancey's background?
 8      A   I don't know specifically what his
 9  background was before joining the League.
10      Q   What is his job?  What does he
11  specifically do?
12      A   He's primarily interested or
13  responsible for monitoring, as I said earlier,
14  the farm program issues, trade issues, other
15  issues that are affected by what goes on in
16  Washington.
17      Q   And what about Elma, what are her --
18      A   She's a secretary.
19      Q   And what about Mike Morton?
20      A   Mike's more or less Dalton's assistant.
21      Q   In your role as public relations
22  officer, what do you do?
23      A   Well, primarily, I speak on behalf of
24  the industry to reporters, give presentations
25  from time to time to various groups that are

                                                 Page 13

 1  interested.
 2      Q   You speak on behalf of the League or
 3  the industry?  Is there a difference?
 4      A   Well, both.  Speak on behalf of both.
 5      Q   But you're employed by the League?
 6      A   That's correct.
 7      Q   Now, before you go out and speak on
 8  behalf of the League are you -- do you have to
 9  report to somebody?  Are you directed by the
10  board what to say, what to do or do you go and
11  give your speech on your own?
12      A   Well, any speech I give, obviously, is
13  based and premised upon carrying out the wishes
14  of the board, and on some issues on rather
15  broad terms and some other issues fairly narrow
16  terms.
17      Q   Have they given you specific
18  instructions on what you are supposed to talk
19  about?
20      A   On some occasions.
21      Q   And is that common where the board
22  would give you a -- how is that done?  When
23  they give you specific instructions how is that
24  done, is that a board meeting, say, Andy, we
25  want you to talk about this or that, or do they

                                                 Page 14

 1  give you written instructions?
 2      A   It occurs in a number of different
 3  ways.
 4      Q   When is the last time they gave you
 5  specific instructions?
 6      A   About public speaking?
 7      Q   Yes, about the content of what your
 8  speech is to be about?
 9      A   I don't recall the last time.  I mean,
10  it's a fairly common occurrence.
11      Q   Do they ever review what you have said
12  to people; Andy, you shouldn't have said this,
13  or you should have?
14      A   Sure, sure.
15      Q   Nice job here, nice job there?
16      A   Sure, sure.
17      Q   Says here you are responsible for
18  legislative efforts of the Florida Sugar Cane
19  Industry, what does that mean?
20      A   Well, anything that the League does,
21  quite frankly, the board holds me responsible
22  for.
23          Sometimes I have some direct control
24  over it, and sometimes I don't.  Legislative
25  activities simply means that, anything that's

                                                 Page 15

 1  going on in legislation, either state or
 2  nationally.
 3      Q   You hire lobbiest?
 4      A   I'm sorry?
 5      Q   Do you hire lobbyist?
 6      A   We have.
 7      Q   When is the last time you hired a
 8  lobbyist?
 9      A   Well, actually I have never hired one,
10  we had one working for the League in
11  Tallahassee when I started with the League back
12  in 1988.
13      Q   Who was that?
14      A   Mercer Farrington.
15      Q   Did you ever hire any lobbyist in
16  Washington?
17      A   No.
18      Q   So would it be fair to say the lobbying
19  in Washington on behalf of the League was done
20  by you?
21      A   The work in Washington is done by a
22  combination of people.
23      Q   Who does that?
24      A   Dalton Yancey and the office that is
25  located there is responsible for information

                                                 Page 16

 1  dissemination about our industry and looking
 2  after our interests up there.  Often times I go
 3  up there to participate and to help and
 4  numerous times, members of our board also
 5  participate.
 6      Q   Further down in the paragraph it says
 7  that you man development implementation of the
 8  public relations -- public relation program,
 9  resulting in significantly improved sugar
10  industry image.
11          What do you mean by significantly
12  improved sugar industry image?
13      A   I think the term means we have improved
14  the image of the industry.
15      Q   Was there anything deficient in the
16  image, in your view, that needed improvement?
17      A   I think there's always been a view by
18  the urban population that agriculture was
19  interested in doing their job of growing food
20  and didn't pay a whole lot of attention to what
21  was going on on the coast with the urban
22  neighbors, and we simply sought to change that
23  feeling within the industry, but also
24  demonstrate to our urban friends and neighbors
25  that we did care about them, we were a part of

                                                 Page 17

 1  the community and we were an important part.
 2      Q   Would it be your view, and tell me if
 3  this is right or wrong, that the sugar image,
 4  prior to your coming to the League, needed some
 5  bolstering?
 6      A   It would be my view that the image of
 7  all of agriculture --
 8      Q   I would like to --
 9          MR. EARL:  Let him finish his answer.
10      A   (continuing) -- needed some adjusting
11  then and now.  Sugar cane fell into that
12  category.
13      Q   Okay, what, in terms of sugar cane,
14  needed adjusting?  What were the deficiencies
15  that needed adjusting?
16      A   I think the biggest deficiency, if you
17  can call it a deficiency, was they needed to
18  convince the urban community that they were a
19  part of the South Florida community and simply
20  be more visible, get out and talk to people and
21  meet people.
22      Q   Is it just a matter of visibility or is
23  it a matter of substantive issues?
24      A   It's primarily an issue of visibility
25  to let the urban community know that they were

                                                 Page 18

 1  real people, you know.
 2      Q   Were there any substantive issues, in
 3  your view, that needed improvement?
 4      A   Well, I can't give you specifics,
 5  there's always room for improvement.
 6      Q   Were there any substantive issues you
 7  felt were deficient that you had to immediately
 8  counter of any sort?
 9      A   No.
10      Q   Have you ever testified in court?
11      A   No.
12      Q   Have you ever testified in a court-type
13  procedure, a hearing-type procedure?
14      A   Yes, I have.
15      Q   Where?
16      A   I testified in a -- I guess this was an
17  administrative hearing on a placement of a five
18  hundred KV powerline.
19      Q   Who was that before?
20      A   It was before a hearing officer.
21      Q   Where was that at?
22      A   That was in Tallahassee.
23      Q   When was that?
24      A   I don't recall the exact date.
25      Q   Two years ago?

                                                 Page 19

 1      A   I don't recall.  Since I have been with
 2  the League.
 3      Q   Have you ever testified before a
 4  legislative body of any sort?
 5      A   Yes.
 6      Q   Who was that?
 7      A   Well, I have testified before
 8  committees on occasion.
 9      Q   Which ones?
10      A   I don't remember specific ones.  I have
11  testified, I don't know if you call it testify,
12  I have spoken to representatives from certain
13  committees on issues that affected the
14  industry.
15      Q   Are these state or federal?
16      A   State.
17      Q   Where was this done?
18      A   I don't recall the exact time.
19      Q   What committee did you speak to?
20      A   I know I have been before one of the
21  house committees on, I'm not sure what they
22  call it now, they keep changing the names of
23  committees, Natural Resources is the one I
24  recall.
25      Q   This is the State of Florida?

                                                 Page 20

 1      A   Yes.
 2      Q   When was that?
 3      A   I don't recall.
 4      Q   Other than that experience have you
 5  ever appeared before any committee with the
 6  Florida legislature?
 7      A   I can't -- I don't have any details or
 8  specifics, I have been up there a lot times,
 9  and I'm sure I have when certain issues come
10  up, but I can't give you specifics.
11      Q   What about meetings with staff, not
12  necessarily testifying before the committee,
13  but meetings with the staff of the Florida
14  legislature, have you ever met with staff
15  people?
16      A   Yes, I have.
17      Q   And when was the last time you did
18  that?
19      A   I don't recall.
20      Q   Do you know if that's been in the last
21  two years?
22      A   I can't tell you if it was in the last
23  two years.
24      Q   Do you know what the subject matter was
25  of that meeting?

                                                 Page 21

 1      A   No.
 2      Q   Have you ever met with any staff of the
 3  United States congress?
 4      A   Yes.
 5      Q   When was that?
 6      A   About two weeks ago, as a matter of
 7  fact.
 8      Q   Okay.  Who did you meet with?
 9      A   I don't recall the names, but they were
10  aides to various members of the committee that
11  oversees farm programs for cotton, rice, and
12  sugar.
13      Q   Where was that meeting at?
14      A   In Washington.
15      Q   And do you know who attended that
16  meeting?
17      A   There were a number of people there.  I
18  was there, Dalton Yancey, and then some other
19  farm interests from other parts of the country.
20      Q   Do you know what senators were -- was
21  that senatorial staff people?
22      A   These were staffs that reported to a
23  house committee.
24      Q   It's a house committee?
25      A   That's correct.

                                                 Page 22

 1      Q   Okay.  Are there --
 2          Did you voluntarily do that?  Were you
 3  subpoenaed to do that?
 4      A   Voluntary.
 5      Q   Are there any records?  Do you have any
 6  record?
 7      A   No.
 8      Q   Can you -- I want to find out, if you
 9  can tell me, what the date was and who you
10  talked to?
11      A   Well, I can't give you the specific
12  date, it was about two weeks ago.
13      Q   Would Mr. Yancey have the date and time
14  and specifics of that meeting?
15      A   He would probably have the date and
16  time, if he had a chance to think about it.
17      Q   Would there be a record produced
18  someplace at the League regarding that meeting?
19      A   No.
20      Q   You didn't just appear at the meeting;
21  there was an arrangement made, wasn't there?
22      A   Sure.
23      Q   Was there an exchange of correspondence
24  to make that appearance?
25      A   Absolutely not, just a phone call.

                                                 Page 23

 1      Q   Was there a record of that phone call?
 2      A   I don't know.  There may be a phone
 3  bill somewhere one day that shows a call was
 4  made to somebody's phone.
 5      Q   How were you told to appear on that
 6  date and time before that staff?
 7      A   How was I told?
 8      Q   Yes.
 9      A   Through conversations with Mr. Yancey.
10      Q   He coordinated that?
11      A   Him or somebody in his office would
12  have.
13      Q   What was the substance of that meeting?
14      A   Trade issues.
15      Q   In particular, what trade issues?
16      A   Trade issues that revolve around the
17  NAFTA negotiations, or North American Free
18  Trade Agreement.
19      Q   Prior to that meeting two weeks ago,
20  have you ever met with any other staff or
21  congressional people?
22      A   Yes.
23      Q   When was that?
24      A   I can't tell you.  I met with a bunch
25  of them down through the years.  I can't give

                                                 Page 24

 1  you specifics.
 2      Q   Is there a log on that someplace?
 3      A   No.
 4      Q   Would there be correspondence in your
 5  file on that someplace?
 6      A   Well, not that I am aware of.
 7      Q   Would Mr. Yancey have information on
 8  that?
 9      A   I'm sure Mr. Yancey has some specifics
10  on various meetings he's attended.  I can't
11  tell you if he's got any information on
12  meetings that I might have attended with him.
13      Q   When you attended these meetings in
14  Washington, was Mr. Yancey there on each
15  occasion?
16      A   The most recent meetings?
17      Q   I have asked you what meetings you
18  attended, you said there's a whole lot of them,
19  but you don't recall.  My question is on those
20  meetings was it common for you to go with
21  Mr. Yancey?
22      A   Some of the meetings Mr. Yancey was
23  present and some he was not.
24      Q   And it's your testimony that you do not
25  keep a log or correspondence file or any

                                                 Page 25

 1  information that could tell us what meetings
 2  you went to and when?
 3      A   I don't recall anything of the sort.
 4      Q   You never made a memorandum from the
 5  meeting, from any of these meetings?
 6      A   I don't personally recall making a
 7  memorandum.
 8      Q   Did you ever report back to your board
 9  regarding those meetings?
10      A   Always.
11      Q   So would it not be fair to say that in
12  the minutes of your board meetings it would
13  reflect what meetings you attended, the
14  information you imparted back to the board?
15      A   That's possible, although not always
16  the case.
17      Q   When you go to board meetings is it
18  common to take minutes?
19      A   Yes.
20      Q   Okay.  And would your report to the
21  board -- would you commonly report to the board
22  if you had a meeting with congressional staff
23  people or congress people?
24      A   Most of the time, but like I said
25  earlier, not always.

                                                 Page 26

 1      Q   If it were, without defining the term
 2  an eventful-type meeting, a meaningful-type
 3  meeting, would you not make that report to --
 4          MR. EARL:  Do you understand the term
 5      meaningful or eventful?
 6          THE WITNESS:  I'm not sure I do.
 7      Q   (By Mr. Rosenberg) When you meet with
 8  these people from congress, these staff
 9  meetings, these are set up by somebody, are
10  they not?  You don't just appear?
11      A   That's correct.
12      Q   Are you generally invited to those
13  meetings?  Are you generally invited?  Do they
14  ask you to appear or do you ask to appear?
15      A   Well, it varies.  Sometimes we are
16  asked to appear, or come to meet with some of
17  them about certain things, and other times
18  there are meetings that we have asked to be
19  there.
20      Q   When they ask you to appear, do they do
21  that in writing?
22      A   I don't recall ever receiving anything
23  in writing.  These normally take place, as I
24  said earlier, with a phone call.
25      Q   Is there any memorandum made of that

                                                 Page 27

 1  phone call when you are asked to appear?
 2      A   Not that I'm aware of.
 3      Q   When you ask to appear, you ask to
 4  appear in writing or is that by phone call,
 5  also?
 6      A   By phone call.
 7      Q   Is it your testimony that there are no
 8  records at the League, that you know of,
 9  regarding any of these meetings?
10          MR. EARL:  Asked and answered, counsel.
11      Also, we are in a relevancy area here.
12      What these meetings have to do with the ER
13      permit for the Water Management District
14      and the SWIM Plan, I have a hard time
15      understanding, and I let you go on here for
16      20 minutes.  I'm going to object on the
17      grounds of relevancy.
18          MR. ROSENBERG:  He's telling me, I'm
19      asking him right now if there are records
20      of the meetings.
21          MR. EARL:  You have already asked him
22      that twice.
23          MR. ROSENBERG:  And he's telling me
24      there are no records of these meetings.
25          MR. EARL:  That's not what he said.

                                                 Page 28

 1      You can go back and read the transcript.
 2      Q   (By Mr. Rosenberg) Are there records of
 3  these meetings that you know of?
 4          MR. EARL:  Objection, asked and
 5      answered.
 6          MR. ROSENBERG:  You can answer the
 7      question.
 8          MR. EARL:  I will instruct my witness,
 9      okay?  You can instruct your witnesses.
10          You may answer the question, as you
11      answered it before.  Or you can answer it
12      if you have more information.
13      A   (By the Witness) I don't recall any
14  records.
15          MR. EARL:  That's what he said before,
16      counsel.
17      Q   (By Mr. Rosenberg) Have you ever
18  testified under oath before any congressional
19  committee?
20      A   No.
21      Q   Have you ever made or do you know of
22  anyone from the League that's made a written
23  submission to a congressional committee?
24      A   I know some of our members have.
25      Q   Would they do that through the League

                                                 Page 29

 1  or would they do that independent of the
 2  League?
 3      A   Probably some of both.
 4      Q   When they do that through the League is
 5  there -- are there records kept of that?
 6      A   Not necessarily.  No.
 7      Q   I'm looking through your resume here,
 8  going from the earliest, sir, 1974, '76, and
 9  up, I'm trying to summarize it, would it be
10  fair to say that the first few jobs you had
11  Union Carbide, BASF Wyandotte, were sales jobs,
12  sales and marketing?
13      A   All of the jobs I had prior to joining
14  the League were sales and marketing-type jobs.
15      Q   Other than sales and marketing what
16  else did you do in those jobs in terms of
17  general background, was it just you were in
18  charge of a marketing division of some sort?
19      A   You need to be more --
20      Q   Let me withdraw the question.
21          Does your job now with the League
22  encompass more than you had done in your
23  previous jobs?
24          You told me that you do public
25  relations now and you have done some

                                                 Page 30

 1  legislative work, did you do that in the
 2  earlier jobs?
 3      A   I don't know how to answer your
 4  question.  Quite frankly, I stayed busy in the
 5  jobs I had before, and I stay busy now.
 6      Q   In your earlier jobs before the League
 7  you were in sales and marketing, was it soley
 8  confined to that?
 9      A   Not solely confined to that, that was
10  the primary.
11      Q   What other major components were there
12  in your earlier jobs other than sales and
13  marketing?
14      A   I can't give you specifics, I always
15  worked for somebody else and I did whatever
16  they told me to do.
17      Q   Did that encompass public relations or
18  legislative work?
19      A   No legislative work.
20      Q   Have you authored or coauthored any
21  articles?
22      A   I think I might have written a short
23  article once for one of the farm magazines.
24      Q   Was that on a sugar subject?
25      A   As I recall it was just on sort of a

                                                 Page 31

 1  description of the sugar industry, several
 2  years ago.
 3      Q   And what magazine was that for?
 4      A   I don't recall the magazine.
 5      Q   Do you recall the name of the article?
 6      A   No.
 7      Q   Is that article retrievable by you?
 8  Can you get a copy of that article?
 9      A   Probably get a copy from the magazine
10  if I could reconstruct which one it was.  It
11  was one of the farm magazines, I don't recall
12  which one it was.  There are several in the
13  State of Florida.
14      Q   I have asked you questions where you
15  were author or coauthor, have you been an
16  editor or reviewer of articles that have been
17  submitted on behalf of the League?
18      A   No.
19      Q   When articles are submitted on behalf
20  of the League to, say, Florida Trend or to some
21  farm magazine, are they customarily passed
22  through you or not?
23      A   No.
24      Q   Do you have a person you directly
25  report to?

                                                 Page 32

 1      A   I have 15 people I directly report to.
 2      Q   And there's no one of those that is
 3  your primary contact person?
 4      A   No.
 5      Q   In this matter there are different
 6  petitioners, have you ever worked for any other
 7  petitioner in this matter, other than the
 8  Florida Sugar Cane League?
 9      A   I'm sorry?
10      Q   Did you ever work for any other
11  petitioner here, the co-op for example, or a
12  vegetable group, or have you been solely
13  working for the Florida Sugar Cane League?
14      A   I never worked for anybody other than
15  the Sugar Cane League.
16      Q   Prior to coming here to testify and
17  have your deposition taken, have you relied on
18  or reviewed any writings?
19      A   No.
20      Q   Did you prepare to testify here by
21  looking at any documents or memorandum?
22      A   I went back and looked at some of the
23  proceedings.
24      Q   And what proceedings were those?
25      A   I don't recall specifically.

                                                 Page 33

 1      Q   Other than looking at some of the
 2  proceedings, have you prepared to testify here
 3  by reviewing anything else?
 4      A   No.
 5      Q   You're aware, of course, you have been
 6  identified as a witness in this case?
 7      A   Yes, sir.
 8      Q   And you are aware that your
 9  identification as a witness has stated that you
10  will testify in these matters regarding
11  standing, are you aware of that?
12      A   Yes.
13      Q   That you would testify regarding
14  impacts of the Everglades SWIM Plan and
15  agricultural practices?
16      A   Yes.
17      Q   That you would testify regarding
18  impacts on the League?
19      A   Yes.
20      Q   And impacts on its members?
21      A   Yes.
22      Q   Is there any other subject matter that
23  you have been told that you are going to
24  testify about?
25      A   I don't recall anything else.

                                                 Page 34

 1      Q   So your testimony, would it be fair to
 2  say, would be confined to those matters?
 3      A   I think I would answer that question
 4  yes.
 5      Q   There is no other matters that's been
 6  added?
 7          The reason I'm asking the question, is
 8  it says the matter of his anticipated testimony
 9  as determined at this time.  That was sometime
10  ago, I want to know if that has been
11  supplemented.
12      A   I don't know of anything other than
13  what you have stated.
14          MR. EARL:  Just to clarify the record,
15      counsel.  Since that was filed, there's
16      also been another challenge filed, which is
17      on the Water Management District's ER
18      permit.  I would assume that Mr. Rackley
19      will be testifying on that, many of the
20      issues are the same or similar.
21          MR. ROSENBERG:  I simply asked.  That
22      may be true.  I want to know if there is
23      any expansion regarding this matter -- of
24      the subject matter of this, because it said
25      anticipated testimony as determined at this

                                                 Page 35

 1      time, and it may be that sometime after
 2      this deposition he's going to testify
 3      regarding this component it turns out there
 4      is an extra component that I am not
 5      familiar with.
 6          MR. EARL:  I just told you one, the ER
 7      permit.
 8          MR. ROSENBERG:  Other than that?
 9          MR. EARL:  We are unaware of any right
10      now, but issues develop, as you know.  It's
11      a fluid situation.
12      Q   (By Mr. Rosenberg) what type of
13  organization is the Florida Sugar Cane League?
14      A   The Florida Sugar Cane League is
15  growers of sugar cane, and processors,
16  primarily.
17      Q   Who belongs to it?
18      A   Those who grow sugar cane and process
19  sugar cane.
20      Q   Some of those who grow and process
21  sugar cane in the EAA?
22      A   The Everglades Agricultural Area.
23      Q   And structurally, how is it structured?
24  You have a president and you have a
25  vice-president?

                                                 Page 36

 1      A   Primarily the policy decisions of the
 2  League are made by a board of directors.
 3      Q   Those are the 15, 15 people you said
 4  you had to report to?
 5      A   That's correct.
 6      Q   Is there a nominal president of the
 7  League?
 8      A   There's a chairman and a president, and
 9  secretary-treausurer.  And I believe now we
10  also have an assistant secretary-treasurer.
11  Then, of course, as a vice-president and
12  general manager, I'm also an officer.
13      Q   Can you give me a list; chairman,
14  president, secretary-treausurer?
15      A   Chairman is Jim Arlen Hilliard and the
16  president is Jose Fanjul.  J-o-s-e F-a-n-j-u-l.
17      Q   And the secretary?
18      A   Secretary, currently we just -- let me
19  think now.  Secretary currently now is Don
20  Carson, as I recall.
21      Q   Treasurer?
22      A   He's secretary and treasurer.
23      Q   And you are a vice-president?
24      A   That's correct.
25      Q   Okay.  How many members are there of

                                                 Page 37

 1  the League?
 2      A   There are approximately 75 members.
 3      Q   How often does the board meet?
 4      A   We have scheduled board meetings every
 5  other month.
 6      Q   There are minutes taken of board
 7  meetings?
 8      A   Yes.
 9      Q   Who takes the minutes of the board
10  meetings?
11      A   Normally I take the minutes.
12      Q   Are the minutes then typed up and
13  circulated to the board members after the
14  meeting?
15      A   Yes, we mail them to the board members
16  after the meeting.
17      Q   Is the board meeting open to all 75
18  members?
19      A   Actually, I don't know.  I mean, we
20  have never had a board meeting where all 75
21  asked to show up, I assume it is, we have never
22  had that.
23      Q   When board meetings are scheduled is
24  there a notice sent out?
25      A   To the board members, that's correct.

                                                 Page 38

 1      Q   Not a notice sent out to the non board
 2  members?
 3      A   No.
 4      Q   Does the League also have, I guess as
 5  required by law, yearly meetings, annual
 6  meetings?
 7      A   Yes.
 8      Q   Is that it, at these annual meetings
 9  the board is selected?  Select the president?
10      A   Yes.
11      Q   Is there a list of current board
12  members that you have?
13      A   Yes.
14      Q   Do you know it by heart, or can I
15  simply ask you for the list?
16      A   I think we might have produced a list
17  in your request for documents, I don't recall
18  if we did.
19      Q   Do you know if the board members
20  presently are the same as the board members in
21  1990?
22      A   No, they aren't.
23      Q   Is there also a 1990 list of board
24  members?
25          I don't know if we have -- is there --

                                                 Page 39

 1  Is there a list of 1990 board members that is
 2  retrievable by you?
 3      A   I don't know if there is or not.  I
 4  normally only try to keep myself concerned with
 5  the current board.
 6      Q   You would keep records of the current
 7  year's board meetings, wouldn't you?
 8      A   That's correct.
 9      Q   How is the League funded?
10      A   From dues paid by its members.
11      Q   And are these dues payments passed by
12  the board?  Board, in effect, makes
13  assessments?
14      A   The board approves a budget and then
15  determines the dues structure.
16      Q   Does the board also approve all
17  expenditures in every given year?
18          In other words, you make the grants, I
19  guess, to various entities or you enter into
20  contracts with various scientific study groups,
21  am I correct?
22      A   That's correct.
23      Q   When these grants are made, are -- the
24  scientific moneys contracted out, are those
25  matters taken before the board or is that

                                                 Page 40

 1  something that you do as vice-president?
 2      A   Normally anything that is outside of
 3  the operating expenses of the office or salary
 4  or administrative costs, those kinds of things,
 5  would be taken to the board.
 6      Q   So if a grant were made to IFAS for one
 7  study or another and that grant were 30
 8  thousand dollars, that grant would require
 9  board approval?
10      A   Sometimes they would, if it were a
11  specific ag. grant, the board would often times
12  defer that approval to the appropriate
13  committee, in that instance it would be the
14  ag. research committee.
15      Q   Is that commonly the situation, the
16  board has various committees attached to it,
17  and those committees would approve various
18  expenditures?
19      A   Normally the committee would approve
20  items that fell within their area of
21  responsibility.
22      Q   Is a there list that you have of funded
23  projects in any given year?
24      A   Not that I'm aware of.
25      Q   How do you monitor what is going on in

                                                 Page 41

 1  various projects if you don't have a list or
 2  some compilation of them?
 3      A   For instance, with ag. research I would
 4  hold Dr. Dunckleman responsible for handling
 5  those projects, and as long as he fell within
 6  the budgets of that particular area, then we
 7  would be satisfied.  I'm sure he uses whatever
 8  works best for him in terms of keeping up with
 9  his projects.
10      Q   Assume there was a given number of
11  funded projects, and for example, ten, would
12  Dr. Dunckleman be responsible for monitoring
13  each of those ten projects?
14      A   If they had to do with ag. research,
15  that's correct.
16      Q   Then when he monitors those projects
17  does he report back to you as to what's
18  happening on those projects?  Does he issue a
19  report to anybody?
20      A   Of course.  John reports to me on a
21  daily basis what's going on.  He also reports
22  to the board whenever we have a board meeting.
23  He also meets periodically with the
24  ag. research committee, which is where most of
25  the reporting would be done back to the League

                                                 Page 42

 1  proper, if you will.
 2      Q   To the best of your knowledge is there
 3  a list of current funded projects by the
 4  League?
 5          MR. EARL:  Asked and answered, counsel.
 6      He's already answered that question.
 7      Q   (By Mr. Rosenberg) Well, I'm not sure
 8  he has.
 9          But, is there a list that you have or
10  Dunckleman would have, or somebody else would
11  have, of current funded projects that is
12  charted on a board someplace, or come up for
13  review?
14      A   I'm not aware of a complete list of
15  everything that is funded.
16      Q   The projects that are funded, some of
17  them are scientific, am I correct?
18      A   That's correct.
19      Q   Are some of them also economic?
20      A   From time to time we might be involved
21  in some economic funding, sure.
22      Q   Are you funding any economic projects
23  now?
24      A   Yes.
25      Q   What economic projects are you funding

                                                 Page 43

 1  now?
 2      A   I believe those projects under
 3  attorney/client privilege that are currently
 4  ongoing.
 5      Q   Well, do you employ Peterson
 6  Consulting?
 7      A   The League directly does not employ
 8  Peterson Consulting.
 9      Q   Is the League directly funding any
10  economic consulting group?
11      A   Not currently.
12      Q   Does the League currently have projects
13  concerning BMPs?
14      A   Well, yes, we do.
15      Q   And do you know what those projects
16  are?
17      A   The League made a grant to the
18  University of Florida, Dr. David Anderson, to
19  look at some of the proposed BMPs in order to
20  meet the BMP section of the SWIM Plan.
21      Q   Is there any other BMP project that is
22  being funded now?
23      A   There's still a limited amount of work
24  being done and funded on some other aspects of
25  the BMPs through Hutcheon Engineers.

                                                 Page 44

 1          MR. EARL:  Mr. Rackley, in giving your
 2      answers, you may answer anything that is
 3      not the subject of attorney/client or
 4      attorney work product.  Only provide
 5      information on those matters.
 6      Q   (By Mr. Rosenberg) Is there any project
 7  concerning alternatives to BMPs that the League
 8  is funding?
 9          When I say BMPs, I'm talking about the
10  BMPs that are listed in the SWIM Plan, any
11  projects concerning alternatives to those?
12      A   I don't recall anything other than what
13  I have just mentioned to you.
14      Q   Is the League funding any projects now,
15  any scientific projects now concerning STA
16  study?
17      A   No.
18      Q   Is the League funding any project now
19  concerning subsidence study?
20      A   No.
21      Q   Is the League funding any project now
22  concerning mercury study?
23      A   No.  The League is not funding anything
24  on mercury, no.
25      Q   Do you know if the members of the

                                                 Page 45

 1  League are funding any projects concerning
 2  BMPs?
 3      A   No.
 4      Q   Do you know, for example, if the --
 5      A   I'm sorry, I misunderstood the
 6  question.
 7      Q   Do you know if members of the League
 8  are funding projects concerning BMPs?
 9      A   Well, I know some of the members are
10  actually out doing some on-farm work on BMPs,
11  if that falls within what you are asking.
12      Q   Who's doing on-farm work regarding
13  BMPs?
14      A   Well, I know U.S. Sugar is.
15      Q   Do you know what that work is?
16      A   I can't give you specifics, I just know
17  from conversations.
18      Q   Do you know if any other member of the
19  League is doing on-farm BMP studies?
20      A   No, I don't.
21      Q   Do you know if any member of BMP is
22  doing any economic studies?
23          MR. EARL:  Counsel, the question
24      doesn't make sense.
25          MR. ROSENBERG:  I'm asking if he knows

                                                 Page 46

 1      of any member of the League, not the League
 2      itself, any member of the League that is
 3      doing economic studies regarding the EAA.
 4      A   (By the Witness) No, I don't.
 5      Q   Do you know if any member of the League
 6  is doing any studies regarding alternatives to
 7  BMP?
 8      A   Not alternatives to BMP, no.
 9      Q   Do you know if any member of the League
10  is doing any studies concerning phosphorus
11  removal?
12      A   No.
13      Q   Do you know if any member of the League
14  is doing any studies concerning subsidence?
15      A   No.
16      Q   Do you know if any member of the League
17  is doing any study concerning STAs?
18      A   No.
19      Q   Do you know if any member of the League
20  is doing any study concerning mercury?
21      A   No.
22      Q   Do you know if any member of the League
23  within the last two years has done any studies
24  concerning subsidence, STA, mercury or
25  phosphorus removal?

                                                 Page 47

 1      A   No, I don't.
 2      Q   Do you know in the last two years if
 3  any members of the League has done any studies
 4  regarding alternatives to BMPs, other than
 5  U.S. Sugar's on-farm projects?
 6      A   Would you restate the question, please.
 7      Q   Other than U.S. Sugar's on-farm
 8  projects, do you know of any other member of
 9  the League that is doing any studies regarding
10  BMPs or alternatives to BMPs, within the last
11  two years?
12      A   Yes.
13      Q   Who is that?
14      A   Flo-Sun.
15      Q   What Flo-Sun project is that, that you
16  know of?
17      A   They were involved in the, in an Algal
18  Turf Scrubber study.
19      Q   Is that ongoing now, to the best of
20  your knowledge?
21      A   I believe that work has been either
22  discontinued or completed.
23      Q   You have no firsthand knowledge of
24  that, would that be fair to say?
25      A   Well, the Algal Turf Scrubber and its

                                                 Page 48

 1  potential was presented in an alternative plan
 2  that I was familiar with.
 3      Q   But the substance of the study by
 4  Flo-Sun, do you have firsthand knowledge of
 5  that?
 6      A   I don't have the final results, no.
 7      Q   When members of the League do these
 8  studies independent of the League on any of
 9  these subject matters, is it common that they
10  furnish you with the results of their research
11  or their reports?
12      A   Not always.
13      Q   Is there anybody at the League who
14  coordinates who's doing what in the EAA,
15  regarding BMP studies?
16      A   No.
17      Q   They wouldn't report to you, for
18  example, to act as a clearing house so you
19  would know what an entity over here, as opposed
20  to an entity over here is doing?
21      A   Not on a routine basis.
22      Q   Does it ever happen?
23      A   Well, it obviously happened because I
24  was aware of the Algal Turf Scrubber.
25      Q   Does the League have affiliations with

                                                 Page 49

 1  other state or national groups?
 2      A   We have a tri-party agreement with
 3  USDA, University of Florida to do sugar cane
 4  breeding research.
 5      Q   Do you have affiliations with other
 6  lobbying groups or other trade groups?
 7      A   The League doesn't, no, that I'm aware
 8  of, just off the top of my head.
 9      Q   Does the League belong to any PAC,
10  political action committee?
11      A   Does the League belong to any political
12  action committee?
13      Q   Yes.
14      A   No.
15      Q   Do the -- Do you know if any members of
16  the League belong to any political action
17  committee?
18      A   I don't know that.
19      Q   Do you know if there -- if there is a
20  sugar group political action committee of any
21  sort?
22      A   Yes.
23      Q   What do you know about that?
24          MR. EARL:  Objection, relevancy.  You
25      can answer.

                                                 Page 50

 1      Q   What do you know about that?
 2      A   There is an Everglades Agricultural
 3  Area PAC which is a state PAC.
 4      Q   Is that the only one you know about?
 5      A   Then there is a federal PAC, the two
 6  have to be separate.
 7      Q   Who belongs to those PACs?
 8      A   Well, the state PAC is primarily --
 9  primarily funded by the U.S. Sugar Company,
10  Flo-Sun Company, or the mill owning companies,
11  I guess is what I am trying to say, the ones
12  that are on the mill -- the processor side of
13  the business.  The federal PACS are funded by
14  individual contributions from individual grower
15  and processor members.
16      Q   Do you know the name of these PACs?
17          MR. EARL:  Same objection, relevancy.
18      You can answer, if you know.
19      A   (By the Witness) State PAC is called
20  Everglades Agricultural Area PAC, and off the
21  top of my head I can't tell you what we
22  actually call the federal PAC.
23      Q   When a legislation is being discussed,
24  focus on federal legislation or employee
25  quotas, or matters such as that, when that is

                                                 Page 51

 1  being discussed, what is the process by which
 2  the League takes a position and advises your --
 3  let me withdraw the question.
 4          Concerning the import quota of
 5  legislation in 1990, were you -- you were on
 6  the staff of the League at that time, were you
 7  not?
 8      A   Yes.
 9      Q   And did the League take a position on
10  that legislation?
11          MR. EARL:  Objection, relevancy.
12          How is this relevant, counsel, to the
13      SWIM Plan ER permit?
14          MR. ROSENBERG:  It's relevant because
15      there were certain admissions made by the
16      members of the League or the League itself
17      regarding certain issues.
18          MR. EARL:  I don't understand your --
19          MR. ROSENBERG:  I think it will become
20      more relevant, I believe there were certain
21      statements made that are in the nature of
22      admissions.
23          MR. EARL:  We'll go ahead and have a
24      continuing objection, then I would not have
25      to interrupt you.

                                                 Page 52

 1          MR. ROSENBERG:  Right now I'm just
 2      asking the process.  I want to know the
 3      process by which the position was
 4      formulated by the League regarding that
 5      legislation.
 6      A   (By the Witness) Well, positions in the
 7  League tend to evolve over time.
 8          Generally speaking, our members have a
 9  pretty good idea what needs to be in a farm
10  bill as far as sugar production is concerned.
11  Any decisions on the position would be taken or
12  reached, primarily, through the legislative
13  committee of the League.
14      Q   And who is on that legislative
15  committee?
16      A   Who's on it now?
17      Q   Well, I would like who is on it now; I
18  really want to know who was on it in 1990.
19      A   I don't recall who was on it in 1990.
20      Q   Would there be documents retrievable
21  that would tell us who was on that committee in
22  1990?
23      A   I'm not certain if we still have a
24  listing of who was on there in 1990.
25      Q   It's your testimony, as I think I

                                                 Page 53

 1  understand it, that you did not -- withdraw
 2  that, too.
 3          In 1990 the League didn't hire a
 4  lobbyist regarding the import quota of federal
 5  legislation, did they?
 6      A   No.
 7      Q   Would it be fair to say that the
 8  lobbying, if any, was done by League members or
 9  League staff?
10      A   Any work on the sugar program or farm
11  bill was coordinated by our office in
12  Washington and involved numerous members of the
13  industry.
14      Q   Okay.  Within the next six to eight
15  months, as far as you can project into the
16  future, does the League intend to hire anyone
17  presently employed by the University of Florida
18  or IFAS?
19      A   I can't answer that question.
20      Q   As far as you know now, do you intend
21  to hire anybody for a staff position that is
22  now affiliated with the University of Florida
23  or IFAS?
24      A   I don't have any plans.
25      Q   Do you know if any members of the

                                                 Page 54

 1  League intend to offer employment to anybody
 2  now presently employed by IFAS or the
 3  University of Florida?
 4      A   I don't know.
 5      Q   Does the League have a record
 6  librarian?
 7      A   No.
 8      Q   What type of retrieval system does the
 9  League employ to get records of either earlier
10  studies or minutes of meetings or
11  correspondence?  Do you have any retrieval
12  system?
13      A   Well, I usually send my secretary back
14  to the file and see if she can find it.
15      Q   And the files are in date order?
16      A   Usually by -- usually by subject
17  matter.
18      Q   Does the League have a system of
19  purging their files of correspondence or
20  documents?
21      A   I wouldn't say they really have a
22  system, we clean out from time to time, when
23  files are overflowing, but I don't -- I have
24  not instituted nor am I aware of any system of
25  purging files, no.

                                                 Page 55

 1      Q   You wouldn't purge minutes of board
 2  meetings two or three years ago, would you?
 3  When I say you, the staff of the League?
 4      A   No.
 5      Q   Are you personally familiar with the
 6  1990 federal sugar legislation?
 7      A   I'm generally familiar with it.
 8          MR. EARL:  Continuing relevancy
 9      objection; correct, counsel?
10          MR. ROSENBERG:  Fine.
11      Q   (By Mr. Rosenberg) Are you also
12  familiar with the proposed Bradley amendment to
13  that legislation?
14      A   I don't recall what the Bradley
15  amendment was.
16      Q   Do you recall whether there was an
17  amendment to remove two cents from the loan
18  price?
19      A   I do recall there was some talk about a
20  two-cent reduction, yes.
21      Q   Regarding that 1990 legislation, that
22  Bradley amendment, that two-cent situation, was
23  there anybody on the League who acted as a
24  principal point person with congress on that?
25          MR. EARL:  On the specific two cents,

                                                 Page 56

 1      you are talking about?
 2          MR. ROSENBERG:  That's right, on the
 3      Bradley amendment.
 4          Was there anybody who acted as the
 5      specific point person on that?
 6      A   (By the Witness) For?
 7      Q   For the League.
 8      A   I don't recall anybody acting as a
 9  point person for that specific issue.
10      Q   Was there anybody who acted as point
11  person for the League regarding the 1990 sugar
12  legislation?
13      A   Normally the point person in Washington
14  would be Dalton Yancey.
15      Q   Was there any member of the League that
16  acted in a primary or point person?
17      A   No.
18      Q   Are you familiar with the non recourse
19  loan program?
20      A   I don't --
21          MR. EARL:  Objection, relevancy.
22          MR. ROSENBERG:  Just ask if he's
23      familiar with it.
24      A   (By the Witness) I have a general
25  understanding or familiarity with it.

                                                 Page 57

 1      Q   Do you know when the last default was
 2  made by any sugar cane producer in the EAA?
 3          MR. EARL:  Continuing objection and
 4      relevancy; counsel?
 5          Continuing objection, relevancy,
 6      correct?
 7          MR. ROSENBERG:  If you say so.  You're
 8      on record.
 9          MR. EARL:  You agree that I have a
10      continuing objection?
11          MR. ROSENBERG:  Yes.
12          MR. EARL:  That's all I need.
13      Q   (By Mr. Rosenberg) Let me go back to
14  that.  Your answer was you don't recall the
15  last default made by a sugar cane producer in
16  EAA?
17      A   No.
18      Q   Do you have any information that if a
19  member of the League would receive only the
20  loan rate for his product that he would lose
21  money?
22          MR. EARL:  Objection; form of the
23      question.
24      Q   (By Mr. Rosenberg) I will reconstruct
25  it, then.

                                                 Page 58

 1          Do you have any information, you,
 2  yourself, that if a member of the League were
 3  to receive only the loan rate for his product
 4  that he would lose money?
 5      A   I don't have any knowledge of the
 6  financial conditions of the members.
 7      Q   Does the League have any studies or
 8  records indicating that at 18 cents a pound for
 9  sugar any members of the League would lose
10  money?
11      A   None that I'm aware of.
12      Q   From 1980 to 1989, in Florida, focusing
13  on the EAA, did the number of sugar harvest
14  acres increase or decrease?
15      A   Would you restate the question.
16      Q   From 1980 to 1989 --
17          MR. EARL:  What was the question?
18      Q   (By Mr. Rosenberg) Did the number of
19  sugar harvested acres increase or decrease in
20  the EAA from the period 1980 to 1989?
21      A   I believe it increased.
22      Q   Do you know by what amount?
23      A   I don't recall the amounts, no.
24      Q   Does the League keep records of that?
25      A   We have a chart that shows what the

                                                 Page 59

 1  acreage has been during that time period, as I
 2  recall.
 3      Q   So the answer would be that you do keep
 4  a record of that?
 5          MR. EARL:  That's not his answer.
 6      Q   (By Mr. Rosenberg) I will rephrase it.
 7  Other than the chart do you keep records?
 8      A   We do have some charts on the sugar
 9  cane acreages, I'm not sure how far back it
10  goes.
11      Q   Now, for the same period, 1980 to 1989,
12  did the number of growers of sugar increase in
13  the EAA?
14      A   I don't know the answer to that.
15      Q   Do you know how many sugar growers
16  there are in the EAA today?
17      A   I don't know an exact number.
18      Q   Is it approximately 135?
19      A   I can't tell you.  I'm speculating.
20      Q   Does the League have records on that,
21  as to how many growers there are in the EAA?
22      A   No.
23      Q   Do you know anyone who would have
24  records of that?
25      A   I would guess the ACAS office, which is

                                                 Page 60

 1  a part of USDA, would have a list.
 2      Q   Does the League keep records of the
 3  size of growers in the EAA who owns what land,
 4  what amounts?
 5      A   No.
 6      Q   Is there a map someplace in the EAA
 7  which is -- shows -- which shows by virtue of
 8  shading who owns what part of the EAA?
 9      A   No.
10      Q   Did you not -- did the League, to the
11  best of your knowledge, ever produce a map in
12  1985 or 1986 with various shadings showing U.S.
13  Sugar owned property and Flo-Sun's owned
14  property?
15      A   No.
16      Q   Are you not familiar with that?
17      A   We never produced one like that.
18      Q   Were you never in the offices of Hazen
19  and Sawyer?
20      A   No.
21      Q   When the people from Hazen and Sawyer
22  came over to the League, did they ever request
23  a map of you from the EAA?
24      A   Yes, I think they did.
25      Q   Did you furnish them with a map?

                                                 Page 61

 1      A   Yes.
 2      Q   And what type of map did you furnish
 3  them with?
 4      A   It was a map that showed the various
 5  sugar mills in the EAA and the cane acres that
 6  went to each of those mills.
 7      Q   Did it also show on that map, by virtue
 8  of shading and other ways of separating, who
 9  owned what land in terms of bigger producers?
10      A   No.
11      Q   Do you have other copies of that 1985
12  map available?
13      A   Yes.
14      Q   Could we be furnished with a copy of
15  that?
16          MR. EARL:  If it's in the documents you
17      get it, counsel.  If you want to see -- you
18      can get it -- you obviously seen it -- if
19      it was called for by your request.
20      Q   (By Mr. Rosenberg) If is isn't
21  furnished, if we subpoena it, would you have
22  one there, an extra?
23      A   I have some in stock.
24      Q   Okay.
25          MR. EARL:  Could we take a short break.

                                                 Page 62

 1          (Whereupon, a recess was taken.)
 2      Q   (By Mr. Rosenberg) Is the League
 3  presently sponsoring a program to study
 4  phosphorus and nitrate pollution in the
 5  Everglades?
 6      A   No.
 7      Q   Has the League had such a program
 8  within the last two years?
 9      A   No.
10      Q   Do you know if any of the members of
11  the League have a program to study phosphorus
12  and nitrate pollution in the Everglades?
13      A   No.
14      Q   You don't know?
15      A   No.
16      Q   Do you know if any member of the League
17  has had such a program within the last two
18  years?
19      A   No.
20      Q   What does the term "best management
21  practices" mean to you?
22      A   Means those practices that a farmer
23  would use that would have the greatest crop
24  producing capability with the least amount of
25  input.

                                                 Page 63

 1          Would be those practices that a farmer
 2  or grower would have that would have the
 3  greatest crop producing potential with the
 4  lowest amount of input.
 5      Q   Are you aware of the IFAS BMPs?
 6      A   Generally, I'm aware.
 7      Q   Does the League also have some of its
 8  own BMPs or proposed BMPs?
 9      A   We proposed some BMPs as part of an
10  alternative plan.
11      Q   Has the League undertaken any study
12  that has quantified the risks regarding
13  elevated water tables?
14      A   I can't answer that question.  I don't
15  know.
16      Q   To the extent that you know about the
17  BMPs, can the effectiveness of the IFAS BMPs be
18  generally determined at this time?
19      A   You got to be more specific.
20      Q   You are familiar -- Well, let me do
21  that.
22          Let me give you something that I'm
23  going to mark Government Exhibit 2, which is
24  the part of the planning document of the SWIM
25  Plan, pages 110 through 117, and ask you if you

                                                 Page 64

 1  have seen that before, and if you are familiar
 2  with that?
 3          (Whereupon, Government's Exhibit No. 2
 4      for Identification was marked by the
 5      reporter.)
 6      A   (By the Witness) Seems I recall
 7  reviewing this.
 8          MR. EARL:  Take your time.  If you need
 9      to read it, read it.
10      Q   (By Mr. Rosenberg) Sir, have you read
11  the document or glanced over the document?
12      A   I have looked through it.
13      Q   You have seen it before, haven't you?
14      A   Yes.
15      Q   In the League's view, can the
16  effectiveness of the IFAS BMPs be generally
17  determined as of this time?
18          MR. EARL:  Objection, insofar as the
19      question calls for expert opinion.
20          MR. ROSENBERG:  I'm not asking for
21      expert opinion, I want you to understand
22      that.
23      Q   (By Mr. Rosenberg) To the extent that
24  you understand the League's view, can the
25  effectiveness of BMPs be generally determined

                                                 Page 65

 1  at this time?
 2          MR. EARL:  You can answer that question
 3      if you understand that the League has taken
 4      a position on that.
 5      A   (By the Witness) As far as I know the
 6  League has never, at least in my presence that
 7  I know of, reviewed these BMPs and made a
 8  determination that this one will work and this
 9  one won't.
10      Q   Have the members of the League, to the
11  best of your knowledge, been implementing some
12  of the BMPs that IFAS has proposed here in this
13  exhibit?
14      A   Some of the members are.
15      Q   Is the League, to the best of your
16  knowledge, researching these BMPs or continuing
17  to research implementation of these BMPs?
18      A   Would you restate the question, please.
19      Q   Okay.  To the best of your knowledge
20  does the League have a program, of one sort or
21  another, that is researching the implementation
22  of these BMPs now?
23      A   You referring specifically to the BMPs
24  in this document?
25      Q   I'm referring to Dr. Dunckleman's

                                                 Page 66

 1  subgroup in the League, that staff subgroup,
 2  are they researching or monitoring the
 3  researching, the implementation of these BMPs?
 4      A   No.
 5      Q   Are you familiar with any risk involved
 6  in elevating water tables?
 7      A   I'm sorry?
 8      Q   Are you familiar with any risk involved
 9  with elevating water tables?
10      A   Yes.
11      Q   To what extent are you familiar with
12  that?
13      A   I know the crops, specifically sugar
14  cane, are sensitive to water table levels.
15      Q   Do you know at what level?
16      A   No.
17      Q   Have you done any research in that area
18  yourself?
19      A   No.
20      Q   Have you read any reports or studies?
21      A   I seen one study that's conducted by
22  the University of Florida at the Belle Glade
23  station that had to do with elevated water
24  tables and sugar cane, on one variety of sugar
25  cane.

                                                 Page 67

 1      Q   That's the extent of your familiarity
 2  with that?
 3      A   As far as the research is concerned.
 4      Q   What is the outcome of that study, to
 5  the best of your knowledge?
 6      A   As I recall, the research when I saw
 7  it, it was not complete, but the stand of this
 8  particular variety of sugar cane was reduced
 9  substantially.  I don't recall what the exact
10  percentage was.
11      Q   Do you know what the name of that
12  report is?
13      A   I don't recall the name.
14      Q   Do you know who did that report?
15      A   Dr. Deren.
16      Q   D-e-r-e-n; is that right?
17      A   I believe that's correct.
18      Q   Does the League, to the best of your
19  knowledge, have any other documents specifying
20  opinions concerning particular BMPs?
21      A   I think we have probably turned over
22  some documents to you today that talk about the
23  BMP work conducted by the University of
24  Florida.
25      Q   Other than the University of Florida

                                                 Page 68

 1  document, do we have any other contracts out
 2  regarding the effect of BMPs on crops or
 3  farming practices?
 4      A   Not that I am aware of.
 5      Q   No present studies going on?
 6      A   No.
 7      Q   If there were present studies going on
 8  by members of the League, would you know about
 9  those?
10      A   Not specifically, no.
11      Q   Do you know about any present studies
12  being conducted by members of the League on
13  crops or farming practices that are a result of
14  particular BMPs?
15      A   Again, I know that U.S. Sugar is
16  looking at some of the on-farm practices and
17  their impacts, I don't know the specifics.
18      Q   Other than U.S. Sugar, is there anybody
19  else that is doing that work that you know of?
20      A   I don't know specifically, myself, of
21  other companies that are actually doing work
22  for research purposes.
23      Q   Okay.  Let me ask you if you have
24  knowledge of these statements:  Growers have
25  tried to maintain water table elevation at

                                                 Page 69

 1  somewhere between two and three feet.  Do you
 2  have any knowledge of that?
 3          MR. EARL:  You talking about the
 4      statement, who made it?
 5          MR. ROSENBERG:  I'm talking about
 6      whether he has any knowledge whether there
 7      is any studies or literature or terms, of
 8      his common knowledge, whether growers have
 9      tried to maintain water table elevation at
10      somewhere between two and three feet.
11          MR. EARL:  So I understand --
12          MR. ROSENBERG:  Let me withdraw the
13      question, I will make it an easier
14      question.
15          Okay.
16      Q   (By Mr. Rosenberg) Do you personally
17  have knowledge of where growers generally try
18  to maintain their water level elevations?
19      A   Not specific information, no.
20      Q   Okay.  Do you have specific knowledge
21  regarding whether the IFAS BMPs are calling for
22  an adjustment of this elevated water table or
23  this water table elevation?
24      A   It's my understanding that IFAS BMPs
25  call for a change in the way the water is

                                                 Page 70

 1  managed on the farm.
 2      Q   You have personal knowledge regarding
 3  whether there will be a degree of damage to
 4  sugar crops if the water table is elevated?
 5      A   If the water table is elevated to a
 6  level?
 7      Q   Of the IFAS proposed BMPs?
 8      A   Not specifically, no.
 9      Q   Is there anybody at the League who
10  would have that knowledge, on your staff,
11  regarding that area?
12      A   Well, generally speaking, John
13  Dunckleman would be familiar with that.
14      Q   Would it be fair to say that
15  Dr. Dunckleman is the person on staff at the
16  League who would be familiar with the water
17  table elevation and the proposed IFAS water
18  table elevation, and the effect of water table
19  change in elevations?  Would he be the person
20  in the League that would know about that?
21      A   He would be the person, if anybody
22  would know about it.
23      Q   Okay.
24          Would it be fair to say that you
25  personally have not been involved in any

                                                 Page 71

 1  research with regard to the effectiveness of
 2  BMPs to reduce phosphorus?
 3      A   I have conducted no research on BMPs.
 4      Q   Would it be fair to say your knowledge
 5  here has simply been gained by reading studies
 6  or being informed by people on your staff?
 7      A   My knowledge about BMPs is primarily
 8  related to reading various pieces of research,
 9  speaking with various IFAS researchers, and
10  also upon observation.
11      Q   Can I have you turn to pages 113 and
12  114.  The bottom paragraph of page 113 is
13  entitled BMPs and Associated P Reduction
14  Ranges.  Am I correct?
15      A   Bottom of page 113?
16      Q   Do you have that?
17      A   Okay.  I'm sorry.  Yes.
18      Q   And following that are nine indented
19  paragraphs; am I right?
20      A   Yes, sir.
21      Q   And those nine indented paragraphs are
22  the IFAS BMPs, are they not?
23      A   I'm not certain if all of these BMPs
24  came directly from IFAS.
25      Q   The first BMP here is:  Calibrated soil

                                                 Page 72

 1  test recommendations.  What is your
 2  understanding of what that is?
 3      A   I don't know exactly what a calibrated
 4  soil test is.
 5      Q   It goes on to say that these
 6  recommendations could reduce phosphorus losses
 7  from zero dash 25 and zero dash ten percent for
 8  vegetables and sugar cane respectively.
 9          What is your understanding of what that
10  says?
11      A   What do the percentages say?
12      Q   Right.  Do you have any basis of
13  knowing whether that would be correct or
14  incorrect?
15      A   I don't know whether that is correct or
16  incorrect.
17      Q   So it would be fair to say that you are
18  not familiar with calibrated soil tests?
19      A   I don't know what a calibrated soil
20  test is specifically.
21      Q   Let's look at number 2 here:  Banding
22  fertilizer.  Are you familiar with what that
23  is?
24      A   Yes, I'm somewhat familiar with that
25  practice.

                                                 Page 73

 1      Q   What is that?
 2      A   Banding fertilizer is where you set up
 3  an operation where the fertilizer is put
 4  directly where the root system of the plant
 5  will be as opposed to the entire furrow.
 6      Q   As opposed to broadcasting?
 7      A   As opposed to covering the entire field
 8  area.
 9      Q   The sentence goes on to say that
10  banding fertilizer for vegetable production
11  instead of broadcasting it could reduce P
12  losses from 10 to 40 percent.  Do you know
13  anything about that?
14      A   No.  I know what I see here and read.
15      Q   Do you have any reason to believe
16  that's incorrect or correct, or any basis?
17      A   I don't have anything personally to
18  base a decision on whether that is accurate or
19  not.
20      Q   Do you know whether that is working for
21  vegetable interests?  Do you have any knowledge
22  whether banding fertilizer is something that
23  the vegetable people are doing and whether that
24  is working?
25      A   No.

                                                 Page 74

 1      Q   What is the standard practice in the
 2  sugar cane industry for applying fertilizer, is
 3  it broadcasting?
 4      A   Today the majority of the fertilizer is
 5  applied directly over the row, which would be
 6  banding, as this terminology is used.
 7      Q   So, would it be fair to say that this
 8  BMP of banding fertilizer is something that is
 9  being done in the sugar industry today?
10      A   That's correct.
11      Q   Do you have any knowledge of whether
12  this process of banding is cost beneficial as
13  opposed to other applications of fertilizer?
14      A   Would you restate that.
15      Q   Do you know whether banding is cost
16  beneficial to the farmers, that is; do they
17  save money by doing banding as opposed to
18  broadcasting or using any other method of
19  applying fertilizer?
20      A   I don't know whether they save any
21  money or not, no.
22      Q   Is there any report on that anyplace,
23  do you know?
24      A   I'm not aware of any report.
25      Q   Do you know whether by engaging in

                                                 Page 75

 1  banding that would require the purchase of less
 2  fertilizer?
 3      A   Banding should require less fertilizer,
 4  that's accurate.
 5      Q   Number 3, the next BMP here is:
 6  Prevention fertilizer spills.  Do you know what
 7  that BMP is about?
 8      A   I think that one is fairly
 9  self-explanatory.  It means a preventive
10  program making people who apply the fertilizer
11  aware of the consequences of an accidental
12  fertilizer spill, and to take extensive efforts
13  to prevent that from happening.
14      Q   It goes on to say that that could
15  reduce phosphorus losses from zero to 15
16  percent.  Do you agree with that figure?  Do
17  you have any basis for that?
18      A   I don't have any scientific evidence of
19  whether that percentage is correct.
20      Q   Do you know if anybody at the League or
21  any studies have been conducted that would
22  speak to that?
23      A   I know IFAS has done work on this, on
24  this particular issue.
25      Q   Other than IFAS, does the League have

                                                 Page 76

 1  any reports or information that it has been
 2  able to substantiate that or otherwise?
 3      A   Not that I'm aware of.
 4      Q   The fourth BMP is:  Minimizing water
 5  table fluctuations in vegetable and sugar cane
 6  fields could reduce phosphorus losses from zero
 7  to 50 percent.  What is your understanding of
 8  what that BMP is talking about?
 9      A   They are talking there about reducing
10  phosphorus discharges by changing the way you
11  manage the water on a vegetable or sugar cane
12  farm.
13      Q   Do you have any basis for speaking to
14  the point that they make here, that that could
15  reduce phosphorus losses from zero to 50
16  percent?
17      A   No.
18      Q   Do you know if the League has any
19  studies regarding that or any information has
20  been received by the League regarding that?
21      A   Again, we have received information
22  from IFAS, the University of Florida, about the
23  potential phosphorus reduction of the water
24  table and managements.
25      Q   Is BMP number 4 something that the

                                                 Page 77

 1  growers are doing now?
 2      A   Growers now are more closely managing
 3  water on their farm.  I'm not certain that's
 4  the same thing as managing water table
 5  fluctuations.
 6      Q   When you say they are managing water,
 7  what are they doing now that they had not done
 8  before?
 9      A   They pump water off of their farms,
10  generally speaking, less often.
11      Q   Does that mean that they permitted a
12  higher water table to exist?
13      A   It could mean that.  It also could mean
14  that the water in the canals, someplace on
15  their farm, are kept deeper than they would
16  have been previous to implementation of this
17  stricter water management regime.
18      Q   Do you know if that's happened in the
19  canals, if that's the situation in the canals?
20      A   Do I know if that's happening now?
21      Q   Yes.
22      A   I know that the majority of the growers
23  are pumping water less often.
24      Q   Would it be fair to say that they are
25  to one degree or another then utilizing BMP 4

                                                 Page 78

 1  now?
 2      A   Again, as I said earlier, I don't know
 3  that the BMP that they are following is simply
 4  a water table fluctuation BMP.  The BMP that
 5  they are following has more to do with how
 6  often that they turn their pumps on to pump
 7  water off of their property.
 8      Q   Who would know about that?  Who would
 9  be the person with the most knowledge about
10  that?
11      A   At the League?
12      Q   Well, at the League or regarding
13  members of the League?
14      A   At the League it would be Dr. John
15  Dunckleman.
16      Q   Regarding members of the league, what
17  members of the League would have the best
18  knowledge of what pumping practices they are
19  undertaking?
20      A   U.S. Sugar has done a fair amount of
21  analysis of pumping practices.
22      Q   Is there anybody at U.S. Sugar who
23  would be the key person on that, that you know
24  of?
25      A   I'm not sure who the key individual

                                                 Page 79

 1  would be there.
 2      Q   Or the most knowledgeable person at
 3  U.S. Sugar would be on that?
 4      A   I don't know who that would be.
 5      Q   Do you know anybody at U.S. Sugar who
 6  is familiar with that, whether or not they are
 7  the most knowledgeable, familiar with the
 8  pumping practices?
 9      A   Dr. Hank Andries -- A-n-d-r-i-e-s, I
10  believe is how it's spelled.  -- at U.S. Sugar.
11      Q   Do you have any view, from what you
12  have read, from your understanding, whether BMP
13  number 4 is the most effective BMP to reduce
14  phosphorus discharges?
15          MR. EARL:  Objection.  Calls for an
16      opinion.
17      Q   (By Mr. Rosenberg) I'm saying do you
18  have any understanding whether BMP number 4 is
19  the most effective?
20      A   I don't know.
21      Q   The next BMP, number 5, is retention of
22  on-farm drainage.  What's that about?
23      A   This one is speaking about simply
24  retaining water on a farm somewhere as opposed
25  to pumping it off.

                                                 Page 80

 1      Q   Is that like flooding the fallow
 2  fields?
 3      A   It could be.
 4      Q   Is it on-farm movement of water?  Is
 5  that your understanding of this?
 6      A   I'm sorry?
 7      Q   Is it just an on-farm movement of the
 8  water from one spot on the farm to another?
 9      A   Yes.
10      Q   Is that being done now?
11      A   Yes.
12      Q   Do you have any basis or understanding
13  to know that that could reduce phosphorus
14  losses from 15 to 60 percent?
15      A   No.
16      Q   Who would know that at the League, is
17  that John Dunckleman, again?
18      A   I don't think Dr. Dunckleman could tell
19  you whether the 15 to 60 percent is accurate.
20      Q   Is there anybody at the League who
21  could speak to the effectiveness of BMP number
22  5 here?
23      A   In terms of reducing effectiveness of
24  reducing phosphorus?  I don't think so.
25      Q   Do you know anyone who is a member of

                                                 Page 81

 1  the League who could speak to that?  Is that
 2  Hank Andries, again?
 3      A   I think U.S. Sugar could speak to some
 4  of their own experience in terms of how this
 5  might reduce phosphorus.
 6      Q   Other than U.S. Sugar, do you know of
 7  anyone else that could speak to the -- whether
 8  this BMP could reduce phosphorus losses from 15
 9  to 60 percent?
10      A   No, I don't.
11      Q   Be fair to say, then, the League has no
12  reports or studies regarding BMP number 5?
13      A   I'm sorry?
14      Q   Does the League have any reports or
15  studies regarding BMP number 5?
16      A   We have an IFAS report.
17      Q   Okay.  Other than the IFAS report?
18      A   Not that I am aware of.
19      Q   Same thing with number 4, other than
20  the IFAS report, you have no reports or
21  studies?
22      A   That's correct.
23      Q   Turning to page 114.  Item 6, that's
24  retention of vegetables field drainage water in
25  sugar cane or fallow lands.  What's that about?

                                                 Page 82

 1      A   This is where they are talking about
 2  taking water that would normally be pumped off
 3  of a vegetable field into the canals of the
 4  District and simply pumping over onto a sugar
 5  cane field that might at that particular time
 6  need irrigation water.
 7      Q   Is that practice being done now?
 8      A   I don't know if anybody is specifically
 9  doing that today or not.
10      Q   Is there anybody at the League who
11  would know that?
12      A   I don't know.
13      Q   Is that something that John Dunckleman
14  would know about?
15      A   I don't know if he would know the
16  answer to that or not.
17      Q   Is that something that Hank Andries
18  would know about?
19      A   I don't know.
20      Q   U.S. Sugar has both vegetable fields
21  and sugar cane fields, does it not?
22      A   That's correct.
23      Q   Are you aware whether U.S. Sugar is
24  engaging in this practice?
25      A   No, I am not.

                                                 Page 83

 1      Q   Who would be the person at U.S. Sugar
 2  who would know that?
 3      A   Dr. Andries, probably.
 4      Q   The seventh BMP refers to aquatic cover
 5  crop for off-season.  What does that BMP
 6  involve?
 7      A   They are talking about taking fields
 8  that would have had sugar cane removed from
 9  them in the rotation that would have normally
10  stood fallow over the summer, and planting
11  crops, in this case, specifically, rice.
12      Q   Is that being done now?
13      A   Yes, to some extent.
14      Q   And do you know what the experience of
15  the farmers who have done this BMP, what their
16  experience is regarding rice, whether it's
17  something that has been beneficial or not
18  beneficial?
19      A   In what regard?
20      Q   Has it cost them money?  Have they lost
21  money?
22      A   I can't tell you the answer to that.
23      Q   Do you know whether it's removed
24  phosphorus or reduced phosphorus losses, as
25  stated in the SWIM Plan, from 5 to 20 percent?

                                                 Page 84

 1      A   No, I don't.
 2      Q   Do you know whether putting a rice crop
 3  in has any other beneficial effects; for
 4  example, to the soil?
 5      A   The -- I know the initial plantings of
 6  rice in the Everglades Agricultural Area was a
 7  cultural practice to put a beneficial cover
 8  crop on land that would have normally been left
 9  fallow.
10      Q   When you say a beneficial benefit, what
11  are you --
12      A   You're putting organic matter back
13  there from the rice crop, this is organic soil,
14  so you're cutting down on the oxidation of soil
15  or subsidence.
16      Q   Do you have any studies whether the
17  soil for the next sugar crop after the aquatic
18  crop has been more productive than not engaging
19  in this practice?
20      A   No, I don't.
21      Q   Do you know anybody who would know
22  that?
23      A   No, I don't.
24      Q   Would that be something that
25  Dr. Dunckleman would know about?

                                                 Page 85

 1      A   I can't answer that.
 2      Q   Number 8 refers to on-farm retention
 3  ponds utilized to store excess rainfall for
 4  later use as irrigation water.  What's that
 5  about?
 6      A   Building ponds on a piece of property
 7  and pumping the stormwater into those ponds as
 8  opposed to pumping it off the farm.
 9      Q   Is that a practice that is being done
10  now?
11      A   I don't know of any retention ponds
12  inside the Everglades Agricultural Area.
13      Q   Do you know why they are not doing that
14  now?
15      A   No, I don't.
16      Q   Do you know whether that would be an
17  expensive -- or what the expense would be if
18  this BMP were put in practice?
19      A   No.
20      Q   What the cost would be?
21      A   No.
22      Q   Have there been any studies of that,
23  that you know of?
24      A   I can't recall specifics.  I know there
25  have been discussions about the cost of

                                                 Page 86

 1  retention ponds.
 2      Q   When were those discussions and who was
 3  involved?
 4      A   Most of the discussions that I recall
 5  had to do with discussions over using retention
 6  ponds as a part of the Lake Okeechobee SWIM
 7  Plan.
 8      Q   Not as far as the EAA SWIM Plan is
 9  concerned?
10      A   We have discussed them, yes, in the
11  League.
12      Q   When was the last discussion, that you
13  were a party to, held on that subject matter?
14      A   I don't recall.
15      Q   What was the outcome of that
16  discussion?
17      A   Generally speaking, most of the company
18  or farm people who were there, concluded that
19  the expenditure was cost prohibitive.
20      Q   Who was at that meeting?  Was U.S.
21  Sugar at that meeting?
22      A   I don't know specifically who was
23  there.  I do recall that U.S. Sugar had some
24  people at the meeting, but I couldn't give you
25  specific individuals.

                                                 Page 87

 1      Q   When you say -- when you talk about
 2  costs, was that true of bigger farms as well as
 3  smaller farms?  In other words, is that
 4  something that a bigger farm could afford,
 5  something that U.S. Sugar owns or Flo-Sun,
 6  rather than a smaller farm or --
 7          MR. EARL:  Objection.  Compound.
 8      Q   (By Mr. Rosenberg) Regarding the
 9  objection to costs, is it your understanding
10  that the cost problem there is something that
11  would affect bigger farmers or smaller farmers?
12      A   I don't know.
13      Q   Was there any indication by the bigger
14  growers that they could implement this,
15  retention ponds?
16      A   As I recall, all of the people who were
17  involved in the discussion thought this
18  practice was objectionable because of cost.  I
19  don't remember any delineation based on the
20  size of the farm.
21      Q   Other than that meeting are you
22  familiar with any study on that?
23      A   I don't recall.  We never actually did
24  any studies on retention ponds.
25      Q   Do you know if Hutcheon Engineers have

                                                 Page 88

 1  done any studies on retention ponds?
 2      A   I believe Hutcheon Engineers might have
 3  looked at retention ponds as a result of work
 4  we asked them to do in terms of alternatives.
 5      Q   Have they made a report back or a study
 6  back to the League on retention ponds?
 7      A   I don't believe we have received any
 8  official or written report on stormwater --
 9  excuse me, retention ponds.  Not that I recall.
10      Q   When did Hutcheon's, if they did the
11  study, when did they do it, to the best of your
12  information?
13      A   I don't recall.
14      Q   And you don't recall what, if any,
15  conclusions they reached?  Would that be fair
16  to say?
17      A   You mean Hutcheon?
18      Q   On retention ponds.  Right.
19      A   I don't recall in terms of cost or size
20  or this kind of thing, any specifics.
21      Q   BMP number 9 is coordinated farm
22  cropping patterns.  What is that?
23      A   I don't really know, to be honest with
24  you.  That one is a little general, a little
25  broad.

                                                 Page 89

 1      Q   Two paragraphs below that it says:
 2  Based on the above individual BMP effectiveness
 3  ranges, Izuno and Bottcher estimated that the
 4  overall range of P reduction that could be
 5  accomplished for the EAA basin was between 20
 6  to 60 percent.  Do you have any reason to
 7  believe that that figure is accurate or
 8  inaccurate?
 9      A   I couldn't tell you what the accuracy
10  of that statement is.
11      Q   Has the League undertaken any studies
12  whether that figure is accurate or inaccurate?
13      A   No.
14      Q   Would John Dunckleman be able to speak
15  to that issue?
16      A   I don't know if he could or not.
17      Q   Do you know whether any members of the
18  league would be able to speak to that issue?
19      A   No, I don't.
20      Q   Do you know whether or not just by
21  implementing what BMPs have been implemented,
22  whether they have exceeded 20 percent?
23      A   No, I don't.
24      Q   Who would know that?
25      A   I don't know.

                                                 Page 90

 1      Q   Do you know what the goal of the
 2  regulatory program is in terms of reduction of
 3  phosphorus from BMPs?  Percentage goal?
 4      A   Regulatory program?
 5      Q   Of the BMPs.  Do you know what
 6  percentage the regulatory program has set as a
 7  goal for the BMPs to reduce phosphorus?
 8      A   25 percent reduction, I believe.
 9      Q   Do you know whether the BMPs that are
10  being done now by your members are exceeding 25
11  percent?
12      A   I don't know that.
13      Q   Would anybody that you know of of your
14  members know that?
15      A   I don't know of anybody.
16          MR. EARL:  BMPs are not a specified
17      area of this witness' testimony, you are
18      welcome to use additional time on it, but
19      it's not his area of testimony.
20      Q   (By Mr. Rosenberg) Is it your
21  understanding regarding the rule that's been
22  passed by the board to implement the BMPs that
23  BMPs are implemented on an individual farm
24  basis?
25      A   Would you restate that?

                                                 Page 91

 1      Q   Is it your understanding that under the
 2  rule, BMPs are implemented on an individual
 3  farm basis?
 4      A   I don't recall that there is a specific
 5  provision that says it has to be for every
 6  individual farm.
 7      Q   Is it your understanding that regarding
 8  the nine BMPs that we just talked about, that
 9  farmers aren't required to implement each and
10  every one of them, they can pick and choose and
11  mix and match as would best suit them?
12      A   It's my understanding through each
13  farm, through the permit, will be required to
14  reduce phosphorus by 25 percent.
15      Q   You also understand that the rule
16  permits the farmers to use alternatives to the
17  nine specified BMPs?
18      A   I don't -- I don't recall if it says
19  specifically that they can use alternatives.
20          MR. ROSENBERG:  Let me hand out Exhibit
21      3 to you.
22          (Whereupon, Government's Exhibit No. 3
23      for Identification was marked by the
24      reporter.)
25      Q   (By Mr. Rosenberg) Could I ask you on

                                                 Page 92

 1  Exhibit 3 to refer to 40E-63 sub 101
 2  subparagraph 4 on the second page.
 3      A   Say again.
 4      Q   On the second page would you turn to
 5  subparagraph 4?
 6      A   Okay.
 7      Q   I think I have -- may have underscored
 8  it somehow there.  Could I have you read that
 9  for a second.
10          Have you seen this rule before?
11      A   I have seen parts of it.
12      Q   Okay.  My question is fairly easy.  The
13  rule contemplates alternatives.  Alternative
14  BMPs and not just the IFAS BMPs.  Says here:
15  The District shall consider alternatives to the
16  requirements specified in this Chapter.  Are
17  you familiar with this document, a Draft
18  Technical Document In Support of Chapter
19  40E-63?  Have you ever seen that before?
20          (Whereupon, Government's Exhibit No. 4
21      for Identification was marked by the
22      reporter.)
23          MR. EARL:  You're representing this --
24      Counsel, this consists of only 98 pages.
25          MR. ROSENBERG:  Document I'm handing

                                                 Page 93

 1      out has 98 pages.  I'm asking him if he's
 2      ever seen the document, and I'm just simply
 3      going to refer him to pages 57 through 59.
 4      So let me ask him has he ever --
 5          MR. EARL:  Just a second, counsel, I'm
 6      looking.
 7          I note handwritten delineations on
 8      here, I presume these are yours, page 17?
 9          MR. ROSENBERG:  I hope there are no
10      handwritten --
11          MR. EARL:  Where it's circled.
12          MR. ROSENBERG:  I -- those -- those can
13      be disregarded -- or somebody in my office --
14      I don't intend to ask any questions.
15          MR. EARL:  Page 18.
16          MR. ROSENBERG:  Those are insignificant
17      as far as this witness is concerned.  I
18      intend to ask no questions regarding
19      anything other than pages 57 through 59.
20          MR. EARL:  Page 81.
21          MR. ROSENBERG:  You can delete those
22      pages, if you wish, and pull them out.
23          MR. EARL:  I'm just noting changes to
24      the document, that's all.
25          MR. ROSENBERG:  I don't contend, other

                                                 Page 94

 1      than pages 57 through 59, are anything that
 2      I'm going to ask any questions about or are
 3      relevant to the examination of this
 4      witness.
 5          MR. EARL:  Take your time and do what
 6      you need to do to familiarize yourself with
 7      that document.
 8      Q   (By Mr. Rosenberg) Have you ever seen
 9  this document before?
10      A   I don't recall if I have seen this
11  specific document or not.
12      Q   Would you look at pages 57 through 59.
13  Are those the same BMPs that I have just
14  discussed with you, at the bottom of 57 through
15  58?
16      A   Well, I don't know if it's the same
17  word-for-word, they look like the same ones.
18      Q   Are you familiar with what's known as
19  the early baseline option?  Are you familiar
20  with that term?
21      A   Only vaguely.
22      Q   What does it mean to you?
23      A   I really don't know.
24      Q   Do you know how it works?
25      A   No.

                                                 Page 95

 1      Q   Has anyone at the League or any
 2  contract that the League has let out worked up
 3  any computer program or model or computer
 4  analysis regarding the BMPs on pages 57 and 58?
 5      A   Would you restate your question.
 6      Q   Has anyone at the League worked up any
 7  computer program or model or computer analysis
 8  of BMPs, as listed on pages 57 or 58?
 9          MR. EARL:  Answer with regard to
10      anything you know that is not being done
11      pursuant to direction of counsel.
12      A   (By the Witness) I don't know of
13  anything.
14      Q   Is there any contract or any study
15  going on regarding the effects of these nine
16  BMPs on reducing phosphorus or effects on crop
17  yield?
18      A   Again, repeat the question.
19      Q   Is there any study going on regarding
20  these BMPs regarding their effect on reducing
21  phosphorus or crop yield?
22      A   Not that I am aware of.
23      Q   No study out by the League on that?
24      A   No.
25      Q   Do you know if any members of the

                                                 Page 96

 1  League are doing those sort of studies or
 2  putting together any computer programs or
 3  models on that?
 4      A   I don't know the answer to that
 5  question.
 6      Q   Is there any study that has been let
 7  out by the League or any undertaking concerning
 8  the costs of the BMPs or the cost of
 9  implementing the BMPs?
10      A   I don't recall anything on that.
11      Q   On page 58, the last paragraph talks
12  about percentages.  Are you familiar, to any
13  extent, with the proposed percentage reduction
14  figures either by Bottcher and Izuno, or
15  anybody at the League, regarding the BMPs?
16      A   That's a broad question.
17      Q   Bottcher and Izuno -- I think it's the
18  third sentence, says:  Though Izuno and
19  Bottcher believe 40 percent or even higher P
20  reductions might be reasonable accomplished by
21  BMPs, the assurances based on currently
22  available information that these levels could
23  be accomplished at a marginal cost less that
24  those for STAs could not be provided.
25          Do you know whether it's possible, by

                                                 Page 97

 1  using these BMPs, to achieve a 40 percent or
 2  higher P reduction?
 3          MR. EARL:  Objection.  Calls for an
 4      opinion.
 5      Q   (By Mr. Rosenberg) Do you have an
 6  understanding whether using these BMPs could
 7  cause a 40 percent reduction?
 8      A   The only thing I know of about the
 9  effectiveness of these BMPs is what Dr. Izuno
10  and Dr. Bottcher have said to us, or to me, and
11  what they have stated in various meetings and
12  presentations.
13      Q   Do you know anything about BMPs that
14  your members would institute that would cause a
15  60 percent reduction and therefore reduce the
16  need for STAs?
17      A   Well, the League presented alternative
18  plans that called for substantial reductions, I
19  don't recall the exact percentages.
20      Q   And you are familiar with that plan?
21      A   I'm familiar, generally speaking, with
22  that plan, yes.
23      Q   Do you know and did that plan
24  contemplate using BMPs?
25      A   Yes.

                                                 Page 98

 1      Q   And what percentage reduction through
 2  that plan's BMPs could be -- do you think could
 3  be gained?
 4      A   I don't think we presented that, as I
 5  recall, in terms of percentages.  I don't
 6  recall a percentage, quite frankly.
 7      Q   Do you know if on-farm retention ponds
 8  are being implemented in the citrus industry?
 9      A   Yes.
10      Q   And do you know to what extent they are
11  being implemented?
12      A   No.
13      Q   Do you know what their experience has
14  been with that?
15      A   No.
16      Q   Do you know why they are doing that?
17      A   No.
18      Q   Some of your members are also in the
19  citrus industry, are they not?
20      A   Yes.
21      Q   Which ones?
22      A   I don't know all the ones that are.
23      Q   Which ones do you know of?
24      A   I know U.S. Sugar is.
25      Q   Do you know if they are using retention

                                                 Page 99

 1  ponds in their citrus property?
 2      A   On some of their property I'm aware
 3  that they are.
 4      Q   Is there any study that the League has
 5  undertaken or is currently undertaking
 6  regarding retention ponds in the citrus area or
 7  other areas nearby the EAA?
 8      A   No.
 9      Q   You don't know?
10      A   I don't know of any, no.
11      Q   Is the League study data collected
12  through the citrus growers?
13      A   Would you repeat that.
14      Q   Does the League study any data
15  collected through the citrus growers regarding
16  their reduction of fertilizing?
17      A   Not that I'm aware of, no.
18      Q   Are you aware of whether any master
19  permits have been applied for under the rule?
20      A   Under the Everglades?
21      Q   Under rule 40E-63, is there an
22  application for a master permit?
23      A   I'm not aware of any.
24      Q   Is the League in any way involved, or
25  do you anticipate that the League will be

                                                 Page 100

 1  involved in a permit processing on advising
 2  growers on how they should write their permits
 3  or applications for permits?
 4      A   The League and/or either consultants
 5  may offer advice, I don't expect that we would
 6  be involved in writing permits with that kind
 7  of detail.
 8      Q   You would advise growers -- you would
 9  anticipate that the League would advise growers
10  on how they should prepare their applications?
11      A   It's possible, if we were asked
12  specific questions.
13      Q   Is the League involved in that now?
14      A   The League, at least during my tenure,
15  has never actually been involved specifically
16  in helping individual growers pursuing permits.
17      Q   Do you have any general program
18  regarding permits that growers can tap into?
19  Is that an ongoing program or study at the
20  League now?
21      A   No.
22      Q   Do you anticipate that that will
23  happen, that you will have some staff people at
24  the League assigned to helping growers or
25  giving them a fund of information regarding

                                                 Page 101

 1  permits?
 2      A   I don't have any plans to do that
 3  today.
 4          MR. ROSENBERG:  I'm at a point where I
 5      am going on to another area.  Do you want a
 6      break for lunch?  Would you rather take a
 7      break now, I would, and come back at one?
 8          MR. EARL:  You mean a lunch break?
 9          I would rather go on so we don't have
10      such a long afternoon session.
11          MR. ROSENBERG:  All right.  All right.
12          MR. EARL:  Want to take a short break
13      now?
14          MR. ROSENBERG:  Okay.
15          (Whereupon, a recess was taken.)
16          (Whereupon, Government's Exhibit No. 5
17      for Identification was marked by the
18      reporter.)
19      Q   (By Mr. Rosenberg) Sir, I have handed
20  you a copy of Exhibit 5, which is entitled
21  Strategy to Revitalize Everglades and Preserve
22  Farming.  Are you familiar with this document?
23      A   Yes, I'm familiar with this document.
24      Q   Do you recall when this document was
25  presented to the South Florida Water Management

                                                 Page 102

 1  District?
 2      A   Yes.
 3      Q   Were you there?
 4      A   Yes.
 5      Q   Did you have any involvement in
 6  preparing this document for that presentation?
 7      A   Yes.
 8      Q   What was that involvement?
 9      A   Primarily to listen to the discussions
10  that surrounded the preparation of this
11  proposed alternative strategy, and I was also
12  involved in the very last minute discussions in
13  terms of presentation, how to present it.
14      Q   Can I assume from that that there was a
15  pre-presentation of some sort made to you and
16  maybe others?
17      A   Yes.
18      Q   Were you asked to comment on it at that
19  time?
20      A   Yes.
21      Q   Did you have any substantive input into
22  the contents of the program or the
23  presentation?
24      A   What are you referring to as
25  substantive?

                                                 Page 103

 1      Q   Did you tell them something ought to be
 2  changed or ought to be reflected a certain way
 3  or ought to be presented a certain way?
 4      A   I don't recall any specific input about
 5  changes.
 6      Q   How many pre-presentation meetings were
 7  you at regarding this?
 8      A   I don't recall.
 9      Q   Was it more than four?
10      A   Like I said, I don't recall.
11      Q   When you went to these presentations
12  who generally attended?
13      A   I don't recall the exact people who
14  were there.
15      Q   Was Don Carson there?
16      A   I recall Don being at some of the
17  meetings.
18      Q   Was Bob Buker there?
19      A   Yes, I recall Bob Buker being there.
20      Q   Was John Andries?
21      A   At some of the meetings.
22      Q   Was John Dunckleman there?
23      A   Again, at some of the meetings.
24      Q   Do you know how long it took from the
25  starting point of putting the strategy together

                                                 Page 104

 1  until it was finally presented?  How long a
 2  term of time that was from the inception of the
 3  idea to the final presentation to the board?
 4      A   I don't recall when the inception of
 5  the idea was.
 6      Q   This is a Florida Sugar Cane League
 7  program, isn't it?
 8      A   That's correct.
 9      Q   That program would have been started
10  under your stewardship, would it not?
11      A   Not necessarily.
12      Q   Would you have been told that the
13  program was starting?
14      A   Yes.
15      Q   Okay.  Were you told that the program
16  was starting?
17      A   You have to understand we have been
18  looking at alternatives for years.  This
19  alternative means of dealing with stormwater is
20  something that the Florida Sugar Cane League
21  has looked at for a long time and discussed.
22      Q   If you have been looking at it for
23  years, you have studies and memoranda at the
24  League regarding what alternatives you have
25  been looking at?

                                                 Page 105

 1      A   I didn't say that.  It's something that
 2  we have been discussing for a long time.
 3      Q   Do you have memoranda regarding those
 4  discussions at the League?
 5      A   I don't recall any specific memorandum,
 6  no.
 7      Q   Do you recall when the idea was first
 8  presented to you to make this presentation?
 9      A   I don't recall when we first had a
10  discussion about making this particular
11  presentation.
12      Q   Do you recall how long it took to put
13  this thing together in the polished form it's
14  in?
15      A   No, I don't.
16      Q   What was the purpose of having the
17  presentations given in-house?  What was the
18  purpose of these pre-presentations to you and
19  Mr. Andries, and Mr. John Dunckleman and
20  others?
21      A   I'm not sure presentation was accurate.
22  As best we could --
23      Q   And did you discuss the ideas amongst
24  yourselves that were being presented in these
25  presentations?

                                                 Page 106

 1      A   Well, those who were there that had
 2  some understanding of some of these issues did.
 3  I'm not an expert on any of these issues, so I
 4  certainly didn't participate in that part of
 5  the discussions.
 6      Q   Were there questions at these
 7  presentations regarding evidence and research
 8  that backed up these ideas or backed up
 9  strategies?
10      A   Yes.
11      Q   Did you participate in these
12  discussions?
13      A   Well, if you mean was I there, yes, I
14  was there.
15      Q   It was your goal and you wanted it to
16  be presented as something that was well thought
17  out and supportable, did you not?
18      A   We had consultants and other people who
19  had technical expertise that looked at the
20  supportability of this.  My primary reason for
21  being there was to make sure that the
22  presentation flowed well and was understandable
23  to a prospective audience.
24      Q   Who were the these consultants?
25      A   Hutcheon Engineers were the primary

                                                 Page 107

 1  consultants.
 2      Q   Any other consultants other than
 3  Hutcheons?
 4      A   I don't recall any other consultants
 5  being involved in this.
 6      Q   What are the names of the people from
 7  Hutcheon who were there?
 8      A   As I recall, Dave Stuart, an engineer
 9  with Hutcheon's Engineering, was there.
10          I don't recall.  There may have been
11  some others, but I don't recall who they were.
12      Q   Were there any notes or records made of
13  these pre-presentation meetings?
14      A   I don't recall any notes or records of
15  those meetings, no.
16      Q   Was there anybody there, Dr. Dunckleman
17  or you, that was making notes as to, for
18  example, maybe we better look into this or
19  maybe we better check that out?
20      A   You need to restate your question.
21      Q   Was there anybody producing a checklist
22  of items there to be further checked out or to
23  be further researched?
24      A   I don't recall anybody doing a specific
25  checklist, no.

                                                 Page 108

 1      Q   Did anybody circulate around any memos
 2  after these meetings regarding loose ends, for
 3  example?
 4      A   I don't recall any specific memos.
 5      Q   Would it be fair to say that the ideas
 6  that are expressed in this plan are what the
 7  League determined after studying all of the
 8  alternatives that were presented to them?
 9      A   What this plan is was an attempt by the
10  League to offer what they thought was a better
11  strategy for protecting the Everglades than the
12  Everglades SWIM Plan.
13      Q   Was there a contract with Hutcheon
14  Engineers for this particular plan or this
15  particular strategy?
16      A   I don't recall that we had a specific
17  contract for this project.
18      Q   Okay.
19          Can I have you turn to Bates page
20  0919474.
21      A   This one?
22      Q   Yes.
23          Do you know the date that the plan was
24  presented to the board?
25      A   I don't recall the specific day.

                                                 Page 109

 1      Q   Under -- it says, FSCL strategies --
 2  Florida Sugar Cane League Strategies -- that
 3  says the immediate 100 metric ton reduction of
 4  P on-site.  Am I correct?
 5      A   Are you asking me if that's what it
 6  says on mine?
 7      Q   Yes.
 8      A   Yes.
 9      Q   What does that mean?
10      A   It means that the League was going to
11  propose a plan that would immediately begin or
12  lead toward a 100 metric ton reduction of
13  phosphorus on-farm.
14      Q   Is that in the immediate calendar year
15  after this strategy was presented to the board?
16      A   I don't know that it specifically
17  referred to a calendar year or a specific time
18  period.
19      Q   Well, that's my question.  What was the
20  time period?  It says immediate 100 metric ton
21  reduction.  What is the time period for that
22  immediate 100 metric ton reduction?
23      A   The League had the position that based
24  on the best information that we had seen, that
25  by implementing this plan that there would be

                                                 Page 110

 1  an immediate 100 metric ton reduction.
 2      Q   Okay.  I'm focusing on the word
 3  immediate, I'm asking what does that mean.
 4  Does that mean in the calendar year following
 5  the presentation of the plan?
 6      A   It meant as soon as the plan could be
 7  fully implemented.
 8      Q   So that might mean three years hence?
 9  Is that correct?
10      A   I don't know that you could speculate
11  on what it means.
12      Q   All right.
13          And reference is also made to the South
14  Florida Water Management's District mandate of
15  150 metric ton P reduction at primary pumps by
16  1996.  That's the first --
17      A   Yes.
18      Q   Is it your understanding that this 150
19  metric ton reduction represents a 25 percent
20  reduction goal?
21      A   My understanding from our technical
22  people is that the District's mandate is to
23  reduce 150 metric tons of phosphorus at their
24  primary pump by 1996.
25      Q   And is that -- that's the total goal?

                                                 Page 111

 1  Is that --
 2      A   It's my understanding that's their
 3  total goal at the primary pumps.
 4      Q   And that the League's position was that
 5  a hundred metric tons of this could be reduced
 6  on-site?
 7      A   Yes.
 8      Q   I ask you to turn to page 0919476.  Is
 9  it your understanding that the practices here
10  total 100 tons, that the 100 ton reduction that
11  you are talking about making are made through --
12  are reflected on this page and broken down?
13      A   Yes.
14      Q   And that of the 100 ton reduction, 58
15  tons would be reduced by pumping practices?
16      A   That's correct.
17      Q   Now, how do the pumping practices -- To
18  the best of your understanding how do the
19  pumping practices suggested here differ from
20  those of the IFAS report?
21      A   As I indicated earlier I can't tell you
22  how they differ or in what respect they are
23  alike.
24      Q   Who at the League could do that?
25      A   I don't believe there is anybody on the

                                                 Page 112

 1  League staff that can answer that question
 2  specifically.
 3      Q   Who could answer that question,
 4  Hutcheon Engineers?
 5      A   I think Hutcheon Engineers would be the
 6  one that would have to answer that.
 7      Q   Did anyone from the District respond to
 8  your presentation by asking you how this number
 9  was computed?  By "asking you", meaning the
10  League, how this number was computed?
11      A   I'm sure they did.
12      Q   Do you know whether that was responded
13  to by the League or by Hutcheon Engineers?
14      A   I believe on the day of the
15  presentation or very soon thereafter the League
16  provided the backup documents to the South
17  Florida Water Management District.
18      Q   Do you know whether the District ever
19  followed through regarding that backup
20  information to indicate whether it was suitable
21  or unsuitable or needed supplementation?
22      A   I don't recall they ever made an out
23  and out determination that it was suitable or
24  unsuitable either one.
25      Q   Did they ever get back to you after

                                                 Page 113

 1  this documentation was handed you -- when I say
 2  "you", I mean the League -- by saying we need
 3  something more, it's not fully substantiated to
 4  our liking?
 5      A   It's possible that they could have
 6  gotten back to Hutcheon Engineers directly --
 7  because we made that offer to them -- without
 8  my knowledge.
 9      Q   Do you know if the District ever
10  accepted that figure of 58 tons as being a
11  dueable figure?
12      A   Accept in what respect?
13      Q   That they accepted the figure as 58
14  tons as dueable?
15      A   Like the board?
16      Q   The staff people there, the engineers?
17      A   I don't know of anybody specifically at
18  the Water Management District that accepted or
19  rejected that number.
20      Q   Do you know whether the pumping
21  practices referred to here would have any
22  affect on water supply out of the EAA?
23      A   No, I don't.
24      Q   On page 0919477 it's entitled Pumping
25  Practices.  The first bullet says:  Concept

                                                 Page 114

 1  Accepted by SFWMD, EAA/EPD.  What concept was
 2  accepted by the District?
 3      A   The actual use of reducing pumping as a
 4  successful means of reducing phosphorus.
 5      Q   That concept, but that doesn't mean
 6  that the District accepted your 58 ton claim,
 7  does it?
 8      A   It means what it says, the concept was
 9  accepted by the South Florida Water Management.
10      Q   The concept of pumping?
11      A   The concept of pumping practices.
12      Q   Now the next bullet says:  Reduce
13  Drainage Pumping by 33 percent.  What does that
14  mean?
15      A   Reduce drainage, mainly pumping.
16  Refers again to the pumping that's necessary on
17  a sugar cane field, farm, to remove water to
18  prevent flooding.
19      Q   Does that mean you are going to hold
20  back 33 percent of the water in the EAA?
21      A   No, it doesn't.
22      Q   The last bullet here says:  Confirmed
23  by Large Scale Field Test.  What field test was
24  that?
25      A   This particular field test you referred

                                                 Page 115

 1  to here, and I don't recall the exact location,
 2  but it was a field test conducted by U.S. Sugar
 3  Corporation.
 4      Q   Bullet above says it can be implemented
 5  immediately.  There's that word, "immediately".
 6  What is your understanding of what that word
 7  means?
 8      A   Means they can do it right now.
 9      Q   So, by the League's own statement, am I
10  correct, they could reduce 58 metric tons by
11  immediately changing their pumping practices?
12      A   What this statement means is that if a
13  grower implements these pumping practice
14  changes immediately and all growers do it over
15  the entire EAA, then we believe there will be a
16  58 ton reduction, metric ton reduction.
17      Q   And they can do it now?
18      A   They can implement it immediately.
19          MR. EARL:  Except as to legal
20      obstructions and problems caused by the
21      regulatory programs.
22      Q   (By Mr. Rosenberg) They could
23  physically do it now, would that be correct?
24      A   They physically have the capability of
25  changing their practices on-farm, if they were

                                                 Page 116

 1  allowed to do so.
 2      Q   To the best of your knowledge should
 3  they do that now?  Are there any potential
 4  negative consequences to crop yields?
 5      A   Well, there is always a potential when
 6  you are reducing pumping.
 7      Q   My question is have you quantified that
 8  potential?
 9      A   No.
10      Q   Has anybody that you know of quantified
11  that potential?
12      A   I don't know of anybody who has
13  quantified it, no.
14      Q   Would the adverse effects, if any, of
15  these pumping practices be any different than
16  the adverse effects of the IFAS pumping
17  practices?
18      A   I don't know the answer to that.
19      Q   Do you know whether any entity in the
20  EAA now is engaging in the pumping practices
21  referred to here?
22      A   Yes.
23      Q   Who is?
24      A   U.S. Sugar.
25      Q   Do you know what their experience has

                                                 Page 117

 1  been with that in terms of phosphorus
 2  reduction?
 3      A   I only know what was determined by U.S.
 4  Sugar in this large scale field test prior to
 5  the presentation of this plan of the District.
 6      Q   What was that?
 7      A   I don't recall the percentages, but I
 8  do know that information --
 9      Q   You know that information is existing
10  someplace?
11      A   That's right.
12      Q   On the next page, 0919478, there's a
13  reference to other sources.  What is the
14  precise proposal regarding Bryant Sugar Mill?
15      A   You are going to have to be more
16  specific.
17      Q   Are you at page 0919478?
18      A   Yes.
19      Q   Says:  "Other sources", and says
20  "Bryant Sugar Mill", the first bullet.
21          MR. EARL:  Do you want to look through
22      the rest of the document?
23      Q   (By Mr. Rosenberg) Let me ask one more
24  question.  At page 0919476, it has other
25  sources for a strategy and has on-site load

                                                 Page 118

 1  reduction of 20.  So, I'm inquiring as to the
 2  other sources part of the general strategy, and
 3  specifically what is meant by Bryant Sugar
 4  Mill, and take your time and read it, please.
 5      A   I believe that's covered later in the
 6  presentation on page 019480, and an exact
 7  breakout of what can be expected there.
 8          The details about what would be done on
 9  Bryant Sugar Mill, you have to talk to U.S.
10  Sugar about.
11      Q   My question, what precisely is the
12  proposal that is being done at this sugar mill,
13  what are they doing to reduce these loads?
14      A   U.S. Sugar proposed to make some
15  mill-site changes there that were demonstrated
16  would have a positive impact on phosphorus
17  reduction in the EAA.
18      Q   Have they made -- to the best of your
19  knowledge made those changes, as of today?
20      A   Yes, to the best of my knowledge that's
21  already been done.
22      Q   What information is there regarding the
23  effect of those changes in terms of reducing
24  phosphorus?
25      A   Again, I believe that information is on

                                                 Page 119

 1  page -- in the presentation -- 0919480.
 2      Q   Well, this stops as of April.  I'm
 3  trying to get the year.
 4      A   I'm sorry.  I'm sorry.  I'm wrong.
 5  This simply shows what the phosphorus discharge
 6  was historically through the time that the
 7  plant was running.
 8      Q   I'm asking you if you remember telling
 9  me the Bryant Mill changes have been made,
10  whether that's been documented in terms of what
11  results occurred by virtue of the changes?
12      A   I haven't seen the documentation, it's
13  my understanding there was a closed system, it
14  was developed around the Bryant Sugar Mill, and
15  that system has been closed, but U.S. Sugar
16  would have been -- obviously be the ones to
17  have now the information on the specifics.
18      Q   Do you know if any neutral observer has
19  viewed this and studied this and reported on
20  it?
21      A   I'm sorry?
22      Q   Do you know of any neutral observer who
23  has looked at the Bryant Mill and what they
24  have done and what the results of what they
25  have done are?

                                                 Page 120

 1          That's kind of -- withdraw it.
 2          Is there anybody you know have who has
 3  studied what happened at the Bryant Mill now
 4  and can report back to us what the amount of
 5  reduction has been; a neutral observer,
 6  however?
 7      A   I don't know who has observed.
 8      Q   Okay.  Are you familiar with any
 9  evidence of this?  Does U.S. Sugar have
10  evidence of that?  Have they submitted a report
11  to somebody, a study?
12      A   I haven't seen any report on what the
13  result was, all I know is that they have
14  assured the League that that system is a closed
15  system.
16      Q   Have they put a number there regarding
17  phosphorus?
18      A   The number -- that's what I was getting
19  at here, the number of tons of phosphorus would
20  then be reduced, if you closed the system
21  completely, would be a compilation of the
22  phosphorus on these charts on page 0919480.
23      Q   I know that, but we now have some
24  experience with what they have done, if they
25  have done it.  I'm asking from the experience

                                                 Page 121

 1  we have now whether we know what that number
 2  is.  You may not know it.
 3      A   I don't know specifically what the
 4  number is.
 5      Q   Could I have you go back to page 478?
 6          MR. EARL:  What is it, counsel?
 7          MR. ROSENBERG:  Page 478.
 8          It says under other sources, fertilizer
 9      plants.  What is -- what is that reduction
10      about?
11      A   (By the Witness) All of the projects
12  that you see listed on this sheet here under
13  "other sources", which includes fertilizer
14  plants, as we said in our presentation before
15  the District, are areas that we believe we can
16  find phosphorus reductions in.  I don't recall
17  that there was a specific number at the time of
18  this presentation specifically tied to
19  fertilizer plants.  We knew there was some
20  there, and we knew it was something that should
21  be looked at.
22      Q   These fertilizer plants are not in the
23  EAA, am I correct?
24      A   Yes, there is one, at least one that I
25  know of.

                                                 Page 122

 1      Q   What fertilizer plant is that?
 2      A   I believe it's called Clewiston
 3  Fertilizer.
 4      Q   What steps have been taken at this
 5  plant as of this date to reduce phosphorus
 6  spilling or phosphorus getting away from them?
 7      A   I don't know the specifics as it
 8  relates to that plant.
 9      Q   Is that -- When we talk about
10  fertilizer plants, is that the focus of this
11  bullet, that fertilizer --
12      A   The reason for this bullet was to say
13  that is something that should be taken -- that
14  we should take a look at, meaning all of us
15  collectively, as another source of phosphorus
16  reduction.
17      Q   My question is, and help me, I don't
18  understand what you're asking the plant to do
19  that will reduce fertilizer from -- will reduce
20  phosphorus from getting out of EAA?
21      A   I don't know that we have asked a
22  specific fertilizer plant yet, okay, to do
23  specific things.  At this point in time, as I
24  said earlier, we determined or believed that we
25  could get 20 tons of reduction from a

                                                 Page 123

 1  combination of these sources.  We weren't
 2  certain that each of these sources would give a
 3  reduction.  Some of them we were fairly certain
 4  of, some of them we weren't.
 5      Q   What is the other -- it says other
 6  facilities.  What other facilities are you
 7  referring to?
 8      A   There were labor villages.
 9      Q   You still have those?
10      A   Yes.
11      Q   Aren't those being phased out, or are
12  they?  I don't --
13      A   Some of them have been closed.
14      Q   Do you know how much phosphorus was
15  being generated by these labor villages?
16      A   I can't tell you off the top of my
17  head.
18      Q   Who would know that?
19      A   I don't know who would know the
20  specific number per village.
21      Q   What about urban runoff, what urban
22  areas are you talking about?
23      A   Well, again, here we are talking about
24  the cities in the Everglades Agricultural Area.
25      Q   How does that affect the phosphorus

                                                 Page 124

 1  getting out of the EAA into the District pumps?
 2      A   Well, of course, the cities are located
 3  in the EAA and their water ultimately ends up
 4  in the works of the District, as do the
 5  farmers.
 6      Q   Going back to page 476.  A third item
 7  there says:  University of Florida IFAS
 8  recommendation, and has 11 as the number for
 9  the on-site load reduction.  Who would know
10  what the formula is by which you achieved the
11  11 metric ton statement here?
12      A   I don't know specifically who would
13  have this information, but it should be a part
14  of Hutcheon's preparation for this
15  presentation.
16      Q   Was IFAS consulted as part of your
17  strategy presentation?
18      A   I don't recall us having any specific
19  discussions with IFAS regarding this
20  presentation, we had had numerous discussions
21  with IFAS about their best management practices
22  and recommendations.
23      Q   Did they attend any of these
24  pre-presentation meetings?
25      A   I don't recall anybody from IFAS being

                                                 Page 125

 1  there.
 2      Q   Would it be fair to say that the person
 3  at the League or employed by the League who had
 4  responsibility for the different sections of
 5  the plan was Hutcheon Engineers?
 6      A   The actual preparation of the plan was
 7  carried out by Hutcheon Engineers.
 8      Q   They were the coordinators, they were
 9  the recipient of the information, am I correct?
10      A   That's correct.
11      Q   Did members of the League, as opposed
12  to members of the staff, have certain input,
13  responsibilities in this strategy?  In other
14  words, did Hutcheon Engineers say I need this
15  from you, Flo-Sun, I need this from you, U.S.
16  Sugar?
17      A   Individual members were responsible for
18  coming up with certain parts of this plan.
19      Q   Hutcheon Engineers would know that, who
20  those people are and what their input was?
21      A   I assume they would.
22      Q   Was any part of this strategy or this
23  program funded by the Environmental Protection
24  District?
25      A   Ask the question again.

                                                 Page 126

 1      Q   Was any part of the project here, the
 2  strategy, funded by the Environmental
 3  Protection District?
 4      A   Not the plan, not the actual putting
 5  together, this plan was not funded by the
 6  taxing district.
 7      Q   Were there substantive contributions
 8  made by the District, not financial, but
 9  substantive?
10      A   The municipal deep well injections were
11  actually started by the EAA/EPD.
12      Q   Maybe I better have you go back.  What
13  is the EAA/EPD.
14      A   That's the Everglades Agricultural Area
15  environment Protection District.
16      Q   Who is in that?
17      A   Well, it includes all of the growers
18  who own land inside of the Everglades
19  Agricultural Area.
20      Q   And how is it funded?
21      A   It's based on an assessment per acre of
22  land.
23      Q   Do you know what that assessment is?
24      A   I don't know what the assessment is
25  today.

                                                 Page 127

 1      Q   Does the assessment change from year to
 2  year?
 3      A   I don't know that it does, I know that
 4  it can change.
 5      Q   Everybody who owns an acre of land in
 6  the EAA is assessed?
 7      A   As long as that land is used for
 8  agricultural production.
 9      Q   Do you know what the authority of the
10  District is?
11      A   Generally speaking, the authority of
12  the District was to conduct or to be involved
13  in research or practices that would have a
14  positive impact on the environment.
15      Q   How was it created?
16      A   It's created by legislative law.
17  Mandate, I guess, is the correct terminology.
18      Q   Would it be fair to say then that their
19  reports are on file, have to be filed with the
20  State?
21      A   Yes.
22      Q   Do you know what projects they are
23  undertaking now?
24      A   I know that they are currently funding
25  a fairly significant wetland research at Duke

                                                 Page 128

 1  University.
 2      Q   Other than that are they funding
 3  anything else?
 4      A   I am sure they are, right off the top
 5  of my head I can't tell you anything, any
 6  specifics.
 7      Q   On page 486 there's a reference to the
 8  Holey Land project.  What is that?
 9      A   As I recall in listening to this
10  presentation initially, what our consultant was
11  telling us was that the water, the way that the
12  Water Management District was already managing
13  the Holey Land, if they continued to manage it
14  that way it would take 13 metric tons of
15  phosphorus out of the water leaving the
16  Everglades.
17      Q   Is the Holey Land something that can be
18  done immediately?
19      A   Something that is already being done.
20      Q   By the District now?
21      A   By the District now.
22      Q   What's your understanding as to how
23  that is working?  What exactly is happening
24  there?  Are there pumps at the Holey Land?
25      A   There are pumps at the entrance of the

                                                 Page 129

 1  Holey Land and of the -- I believe it's the
 2  Miami Canal, that takes water out of the Miami
 3  Canal and puts it into the Holey Land.
 4      Q   And you say those pumps are -- Well,
 5  let me ask the question.  How did you get the
 6  13 for the load reduction?  Is that happening
 7  now, or is that about to happen?
 8      A   I can't give you specifics.  Hutcheon
 9  Engineers, I'm certain, did some calculations
10  on how much phosphorus the Holey Land would
11  remove as the water flowed through it.
12      Q   They are using the Holey Land, from
13  your understanding, I take it, to act as a
14  filter?
15      A   It's acting as filter as it's removing
16  phosphorus today.
17      Q   Right now it's taking 13 tons out?
18      A   As I recall it would take a minimum of
19  13 tons.
20      Q   Maybe more?
21      A   Maybe more.
22      Q   Can I have you turn to page 490.
23          490 is entitled Phase II:  Research and
24  Development.  Am I correct?
25      A   That's correct.

                                                 Page 130

 1      Q   These are proposals, are they not?
 2      A   That's correct.
 3      Q   And these proposals would need research
 4  and study before they could be implemented; am
 5  I correct?
 6      A   Yes.
 7      Q   There's a time lag, a time delay here,
 8  we couldn't do these things immediately?
 9      A   Some could be done sooner than others.
10      Q   Which ones could be done sooner than
11  others?
12      A   Sediment dredging.
13      Q   What is that?
14      A   I don't remember the exact details, but
15  as I recall that's simple removal of sediment
16  that has settled on the bottom of the canals
17  out of the canals.
18      Q   Well, why couldn't that be done
19  immediately?  Why would that be a research and
20  development project as opposed to a current
21  project?
22      A   Because you need to determine whether
23  or not the actual act of doing that is going to
24  reduce the phosphorus discharges.  There's no
25  need going through that process if it's not

                                                 Page 131

 1  going to get rid of phosphorus.
 2      Q   Is there research going on involved in
 3  sediment removal?
 4      A   U.S. Sugar.
 5      Q   Has that been made available to the
 6  League?
 7      A   I haven't seen any, what level of
 8  phosphorus reduction has occurred as a result
 9  of this sediment dredging.
10      Q   So, would it be fair to say, at least
11  yourself, you, yourself, have no knowledge of
12  what time the projects would be completed as to
13  when this strategy could be implemented?  You
14  don't know if it would be a year from now, two
15  years from now, three years from now?
16      A   I don't know what the length of time
17  would be.
18      Q   Do you know who at U.S. Sugar would
19  know that?  What the status of the sediment
20  dredging research and development is?
21      A   I don't know specifically who is
22  responsible for that.
23      Q   Is the research on any of the projects
24  here far enough long to estimate phosphorus
25  removal effectiveness, to the best of your

                                                 Page 132

 1  knowledge?
 2      A   To the best of my knowledge the League
 3  couldn't give you a number in terms of the
 4  metric tons of phosphorus that would be reduced
 5  or removed, excuse me, by these projects,
 6  because they are still in the research or
 7  development stage.
 8      Q   So would the answer to my question be
 9  the research in the projects here are not far
10  enough long to estimate removal effectiveness?
11      A   Not far enough along to give the kinds
12  of numbers we have given on these other
13  projects.
14      Q   And be able to substantiate these
15  numbers?
16      A   That's correct.
17      Q   The data just isn't there at this
18  point?
19      A   The potential looks good.
20          MR. ROSENBERG:  We are at 20 to one,
21      I'm about to enter into a new phase here,
22      want to take a break?
23          (Whereupon, an off the record
24      discussion was had.)
25      Q   (By Mr. Rosenberg) Dr. William Patrick,

                                                 Page 133

 1  do you know who he is?
 2      A   Yes.
 3      Q   Who is he, sir?
 4      A   He's a professor from Louisiana State
 5  University.
 6      Q   Did he ever do any studies for the
 7  League?
 8      A   Yes.
 9      Q   What studies did he do for the League?
10      A   He conducted some analysis of sugar
11  cane leaf tissue to determine mercury content.
12      Q   Is there a report on that at the
13  League?
14      A   Yes, we have some information, I can't
15  remember specifically what's in it.
16      Q   Regarding Dr. Patrick's studies, has he
17  done any other research regarding mercury?
18      A   He is doing some other research under
19  attorney/client privilege.
20      Q   Is there anybody else employed by the
21  League doing research regarding mercury?
22      A   Not -- No, not that I recall.
23      Q   Has there been anybody else employed by
24  the League doing research regarding mercury?
25      A   No.

                                                 Page 134

 1      Q   Do you know if any of the members of
 2  the League themselves independent of the League
 3  are sponsoring research regarding mercury?
 4      A   I don't know the answer to that.
 5      Q   Do you know if there's been any
 6  drilling or soil sampling by anyone in the EAA
 7  as a test for mercury?
 8      A   No, I don't.
 9      Q   Let me go back to page 490 for a
10  second.  It says at the bottom -- there's an
11  asterisk, "Field Testing to Begin Immediately",
12  for a number of items here.
13          Do you know if the field testing on
14  those items has started?
15      A   At the time of this, the Algal Turf
16  Scrubber, and as I said earlier in my
17  statement, I believe these have been
18  discontinued, it is not practical.
19      Q   Let me put the turf scrubbers aside for
20  a second.  The first strategy here is limerock
21  sorption; am I correct?
22      A   Yes.  That's correct.
23      Q   In a fairly general sense, what is that
24  about?
25      A   Well, according to my limited

                                                 Page 135

 1  understanding, I'm not a chemist --
 2      Q   I understand.
 3      A   -- that's an effort to use limerock's
 4  natural ability to pull phosphorus out of
 5  water.
 6      Q   Has field testing been started on that
 7  process?
 8      A   I believe there is field testing.  By
 9  the way, a good portion, most of this on this
10  page has been carried out by individual members
11  of the League, not the League.  I believe
12  limerock sorption is being looked at as a
13  research-type program by U.S. Sugar.
14      Q   Let me back up for a second.  The
15  program here was presented under the auspices
16  of the League.  So when I refer to limerock
17  sorption that was something that was presented
18  at least under the auspices of the League?
19      A   That's correct.
20      Q   You are saying now that the League
21  itself is not supervising any limerock sorption
22  study, but, in fact, members of the League are
23  doing that; is that correct?
24      A   In the initial presentation we
25  indicated that much of what had been done and

                                                 Page 136

 1  would be done would be done by the individual
 2  companies, and that's what's happening as we
 3  speak.
 4      Q   What is the status of the limerock
 5  sorption study, as far as you understand it?
 6      A   I don't know.
 7      Q   Who would know that?
 8      A   I don't know the answer to that.
 9      Q   The second item here is water
10  treatment.  What, in general, is water
11  treatment?
12      A   Water treatment here, as I recall,
13  referred to something similar to what the
14  District has had or the -- many of the
15  districts has had consultants looking at, and
16  that's using some kind of additive to the water
17  that will take out phosphorus.
18      Q   Has the field testing on that been
19  started?
20      A   Actually, the field testing has not
21  started yet, but we have continued to fund,
22  through grants to IFAS, dollars to narrow that
23  down and determine what ingredients would work.
24      Q   Is that something Dr. Dunckleman would
25  know about?

                                                 Page 137

 1      A   Dr. Dunckleman would be familiar with
 2  it.
 3      Q   Would he know the status of testing of
 4  that strategy?
 5      A   I believe we provided our latest
 6  updating on this water treatment in this
 7  document production.
 8      Q   The third one was the Algal Turf
 9  Scrubbers?
10      A   That's correct.
11      Q   What's the status of that?
12      A   That one has been discontinued.
13  Flo-Sun primarily was looking after that
14  particular portion of this research on their
15  property.
16      Q   Sediment dredging we talked about.
17          Farm interconnects, what is that?
18      A   This is where some of the farms that
19  are close together would look at ways to join
20  their canal system.
21          In the past every land owner had their
22  own system, they were completely separate from
23  anyone else's, and what we are talking about
24  here is if farmer A gets rain on his property
25  and there's a need to pump off stormwater, the

                                                 Page 138

 1  alternative to pumping it off into the District
 2  may be pumping it into farm interconnects,
 3  pumping onto his neighbor's fields or canals
 4  that are empty.
 5      Q   Can that not be done now?
 6      A   As I understand some of it is already
 7  being done between farms at U.S. Sugar and
 8  maybe some other growers.
 9      Q   ASR wells, what is that?
10      A   Aquifer storage and recovery.
11      Q   What work is going on regarding that?
12      A   One of these, or maybe more of these
13  have been put into place by the South Florida
14  Water Management District north of Lake
15  Okeechobee.
16      Q   There was one well north sometime ago?
17      A   Yes, that's right, and they have
18  already been demonstrated to be effective in
19  taking out water that has phosphorus in it,
20  obviously.
21          U.S. Sugar is also --
22      Q   I think they might tell you that's a
23  matter of debate.
24      A   -- U.S. Sugar is also putting in one on
25  their property.  One is going in as we speak,

                                                 Page 139

 1  if it's not already completed.
 2      Q   Okay.  Rock pits.
 3      A   Throughout the EAA there are a number
 4  of places where rock pit excavation has taken
 5  place for highway production, the base of those
 6  pits are made up of limerock.  If limerock
 7  sorption works to remove phosphorus, it's
 8  possible that taking stormwater and pumping
 9  them into those pits may also have a
10  possibility of removing phosphorus.
11      Q   We won't know that until what, the
12  limerock sorption study is in, before we can
13  use the rock pits?
14      A   We will have to determine what degree.
15  Whether they remove phosphorus.
16      Q   And the last bullet here, water
17  quality/supply diversion.
18      A   I'll be honest here, I don't recall
19  exactly what we are referring to with that one.
20          (Whereupon, an off the record
21      discussion was had.)
22          (Whereupon, a luncheon recess was
23      taken.)
24      Q   (By Mr. Rosenberg) Mr. Rackley,
25  regarding the exhibit before you, the strategy,

                                                 Page 140

 1  are you aware of any cost analysis that's going
 2  on regarding the strategies submitted there?
 3  Is there anybody in the League or any of its
 4  members that are conducting cost analysis of
 5  any of the alternatives or any of the BMPs?
 6      A   I'm not specifically aware of the cost
 7  analysis, no.
 8      Q   Let me break that down.  Can I
 9  understand that to be that nobody at the
10  League, League staff people, are doing
11  that, as such?
12      A   The League?
13      Q   Or League contracts?
14      A   No.
15      Q   Is part of Hutcheon's report here, does
16  that encompass cost analysis of the
17  alternatives?
18      A   I don't recall that we have at this
19  point into time asked them to do any cost
20  analysis of these projects.
21      Q   Did they do any cost analysis regarding
22  the IFAS BMPs?
23      A   Not that I recall.
24      Q   Do you know of anyone at the League or
25  any contract from the League regarding cost

                                                 Page 141

 1  analysis of the IFAS BMPs?
 2      A   I believe Dr. Leo Polopolus.
 3      Q   Is doing cost analysis?
 4      A   Has looked at some of the IFAS BMPs.
 5  I'm not certain if he's ever actually given a
 6  number that I'm aware of.
 7      Q   Other than Leo Polopolus, are you aware
 8  of anyone else that would be doing cost
 9  analysis of any sort?
10      A   Not that I am aware of.
11      Q   Are you aware of anybody employed by
12  the co-op that might be doing that?
13      A   No.
14      Q   As a matter of practice here, does the
15  co-op touch base with you as to what they're
16  doing and what you're doing regarding BMP
17  research?
18      A   Not as a practical matter.  They don't
19  make us aware of specifics.
20      Q   There's no sharing or pooling of
21  information on BMP analysis with the co-op and
22  the League?
23      A   Not directly from the League to the
24  co-op.
25      Q   Is there a pooling of information, as

                                                 Page 142

 1  far as you know, regarding any of the members
 2  of the League or the co-op?
 3      A   I don't -- I don't know of any, but
 4  that doesn't mean that it's not occurring.
 5      Q   Regarding the presentation of this
 6  program to the board, you were present at the
 7  time?
 8      A   Yes.
 9      Q   Okay.
10          And I believe the presentation was done
11  by Mr. Buker and Mr. Carson, am I correct?
12      A   As I recall, those were the two
13  involved.
14      Q   Do you recall any comments either
15  Mr. Buker or Mr. Carson made regarding how much
16  phosphorus could be reduced by the strategy
17  that the League wants to employ by their
18  strategy?
19      A   I recall them presenting this report as
20  a part of that presentation, they talk about
21  the number of tons it would be reduced which
22  would be listed here on these charts.
23      Q   Do you recall them using any
24  percentage, like 40 to 60 percent of the
25  phosphorus could be reduced by employing these

                                                 Page 143

 1  strategies?
 2      A   I don't recall percentages in this
 3  presentation, they always talked about tons of
 4  phosphorus reduction.
 5      Q   Were you at any other previous
 6  governing board meetings or workshops where
 7  representatives from a League or its members
 8  had said to the board or staff at the League,
 9  staff -- let me back up.
10          Are you aware of any previous workshops
11  or governing board meetings at the League --
12          Are you aware of any previous meetings
13  at the board, or workshops at the board, where
14  representatives of the League or its members
15  represented that the 25 percent goal of the BMP
16  and the SWIM program could not be attained?
17      A   I'm not aware of any discussion where
18  it talked about it in the 25 percent not being
19  attainable.  Not that I recall.
20      Q   Were you at any meeting where Phil
21  Parsons may have said that to the board or
22  workshop, where the 25 percent goal was a goal
23  that he did not think they could attain?
24      A   I'm not aware of that statement being
25  made.

                                                 Page 144

 1      Q   Would it be fair to say that you never
 2  had a position on any percentage reduction
 3  regarding BMPs?
 4          Talking about you, yourself, whether 25
 5  percent was a right number or 40 percent or 60
 6  percent?
 7      A   No, I have never taken a position one
 8  way or the other.  I'm just not an expert on
 9  BMPs and couldn't do so.
10      Q   Did you ever make any representations
11  to any group you have talked to or anyone else
12  regarding a percentage of phosphorus reduction
13  through BMPs, either yourself or somebody
14  else's?
15      A   I don't recall ever doing such.
16      Q   Okay.  Could you turn to page 0919493.
17          What specifically is that a picture of?
18      A   I don't recall, to be honest with you.
19      Q   Now, the next page 494.  Do you know
20  what that is a picture of?  I realize it's a
21  xerox and it's not a very good copy.
22      A   This appears to be a picture of a
23  sediment canal where the sediment has been
24  removed down to the limestone rock.
25      Q   What study was this related to?

                                                 Page 145

 1      A   This was related to the part of the
 2  alternative plan where we talked about sediment
 3  removal as a possible part of the plan.  It
 4  would also relate to limestone or limerock
 5  sorption, because you're doing two things here,
 6  you're taking the sediment out, which may have
 7  phosphorus in it, you're also making an opening
 8  available to the level of the water which may
 9  also have phosphorus.
10      Q   What happened?  The water is removed
11  from this canal and then they are doing what to
12  it?  They are studying the properties of the
13  base of the canal?
14      A   Well, I can't tell from this one, but
15  as I recall, that they simply removed the
16  sediment from this canal.  I don't think they
17  have done anything to it up to this point in
18  time, other than the removal process.
19      Q   Would the sediment removal process, as
20  you understand it, have to be free of water?
21  Would the canals be pumped out fully free of
22  water?  Would they go in and remove the
23  sediment and put the water back in the canal?
24      A   I'm not certain that they have to
25  remove all the water before they can take the

                                                 Page 146

 1  sediment out.
 2          (Whereupon, Government's Exhibit No. 6
 3      for Identification was marked by the
 4      reporter.)
 5      Q   (By Mr. Rosenberg) Can I have you look
 6  at Exhibit 6 and ask you if you have ever seen
 7  that before?
 8      A   Yes, I have seen this.
 9      Q   That's the Procedural Guide For The
10  Development Of Farm-Level Best Management
11  Practice Plans, and Phosphorus Control in the
12  Everglades Agricultural Area, is it not?
13      A   Yes.
14      Q   Let me have you turn to page 2, which
15  is Bates number 06506,
16          There's a paragraph there -- section
17  entitled What Are BMPs.  Can I have you look at
18  that?
19          The second paragraph below that it
20  says:  It is important to note that the above
21  definition is not the same as the one given in
22  the SFWMD BMP Rule.
23          Could I ask you to read the first
24  paragraph there so I can ask you a question on
25  the second paragraph.

                                                 Page 147

 1          MR. EARL:  What do you want him to do?
 2          MR. ROSENBERG:  Wanted him to read both
 3      paragraphs to himself.
 4          MR. EARL:  I would note also that this
 5      copy you have given the witness has things
 6      underlined and added to it.
 7          MR. ROSENBERG:  That's right.  It has
 8      my underlining.  I want to focus him on
 9      those sections.
10      Q   (By Mr. Rosenberg) The statement that
11  you have just read says that the definition of
12  BMPs in this document is not the same as the
13  definition in the District BMP Rule, am I
14  correct?
15      A   That's correct.
16      Q   Do you know why a different definition
17  was used here?
18      A   I have no idea why a different
19  definition was used.
20      Q   Do you know who paid for this guide or
21  who funded the production of this guide?
22      A   It says -- On the front it says "in
23  cooperation with the Everglades Agricultural
24  Area, Environmental Protection District."
25          I believe this was done from under a

                                                 Page 148

 1  grant from that District to the University of
 2  Florida.
 3      Q   Which definition of BMPs does the
 4  League use?
 5          MR. EARL:  For what purpose, counsel,
 6      are you asking.  There's a rule and farm
 7      BMPs.
 8      Q   (By Mr. Rosenberg) Which definition do
 9  you use regarding what is meant by a BMP or BMP
10  that one of your members would put into place?
11      A   You are going to have to be more
12  specific because the terminology BMP has been
13  misused and overused.
14      Q   I have underlined in the second
15  paragraph there:  The Rule definition is
16  specific to practices that will reduce
17  phosphorus levels by 25 percent.  It does not
18  take into account profitability.
19          Are you with me?
20      A   Yes.
21      Q   Now, the BMPs, as the League
22  understands them, takes into account a
23  profitability factor, does it not?
24          MR. EARL:  Counsel, I think you ought
25      to read in the next sentence so it is on

                                                 Page 149

 1      the record.
 2          MR. ROSENBERG:  I have no problem with
 3      that.
 4          However, it is clear that if
 5      profitability is not maintained, the
 6      practice itself cannot be maintained.
 7      Therefore, the reader is cautioned that the
 8      practices presented in this guidebook,
 9      though labeled as "BMPs," will only be BMPs
10      for your operation if they can be
11      implemented on your farm in an economically
12      viable fashion.
13          Is that the definition the League is
14      using or its members are using, to the best
15      of your knowledge?
16      A   (By the Witness) We are talking about
17  BMPs specifically for phosphorus reduction,
18  yes.
19      Q   We are talking about taking into
20  account profitability?
21      A   Yes, I would ascribe to this definition
22  of BMP as it relates to phosphorus removal.
23      Q   It would have to have profitability in
24  order to be a BMP which you would consider
25  using?

                                                 Page 150

 1      A   Yes.
 2      Q   Now, when you take profitability into
 3  account, how is that done, are there cost
 4  studies done?
 5      A   Well, one of the things that they point
 6  out here, which is something that the League
 7  believes in very, very strongly, is that a BMP
 8  is not a BMP until every single individual
 9  farmer has tried it on his property and can
10  demonstrate that it will reach the desired
11  reduction of phosphorus and will not negatively
12  impact that farmer's profitability.  You really
13  can't determine this through, quote, research
14  other than having each individual farmer do it
15  on his property.
16      Q   All right.
17          On page 2 at the bottom, reference is
18  made to -- I have that, I think, the last
19  sentence or so highlighted.  Phosphorus
20  reduction levels greater than the 25 percent
21  BMP Rule criteria will serve to increase
22  Everglades restoration, reduce cost of STAs,
23  and enhance the environmental, slash, political
24  image of the EAA.
25          Do you know why the last clause was put

                                                 Page 151

 1  in there, enhance the environmental, slash,
 2  political image of the EAA?
 3      A   I have no idea.
 4      Q   Would it be fair to say that you are
 5  not knowledgeable regarding the BMP
 6  effectiveness ranges, the zero to ten percent,
 7  zero to 20 percent, for the various BMPs, but
 8  you are knowledgeable on the BMP effectiveness
 9  ranges?
10      A   I'm certainly not an expert on BMP
11  effectiveness.
12      Q   So what would be the effectiveness
13  ranges of them?
14      A   I just said I'm not an expert in that
15  area.  So.
16      Q   To the extent members of the League are
17  engaging in BMP projects, are they funneling or
18  supplying data to the League on the various
19  projects that they are doing or the various
20  strategies that they are undertaking?
21      A   Restate that, please.
22      Q   To the extent that your members are
23  doing BMPs, of one sort or another, are they
24  furnishing you, the League, with information
25  regarding their experience with those BMPs?

                                                 Page 152

 1      A   We have had growers or members of the
 2  League -- I have personally had them say to me
 3  we are implementing changes in our pumping
 4  practices.  They haven't been in effect long
 5  enough to be able to tell on an individual farm
 6  basis this is how much phosphorus has been
 7  reduced as a result of doing this.
 8      Q   That's regarding pumping practices.
 9  What about regarding other practices, not
10  pumping practices, are you -- are you being
11  furnished data or is it to early to do that?
12      A   Again, I have had conversation of them
13  being implemented, but no concrete data yet to
14  say how much of a reduction took place.
15      Q   Are you aware, then, of any opinions by
16  experts or by analysts whether implementation
17  of BMPs to date, the IFAS BMPs, are having an
18  adverse effect on crops or crop yield?
19      A   Am I aware?
20      Q   Are you aware of any opinion or
21  analysis by experts of whether implementation
22  to date, of BMPs, IFAS BMPs, are having an
23  adverse affect on crops or crop yield?
24      A   No, I am not.
25      Q   Are you aware of any opinions regarding

                                                 Page 153

 1  those same BMPs, whether they are having an
 2  adverse affect on costs or profitability?
 3      A   That's a broad statement, or broad
 4  question.  I have had individual members say to
 5  me, based on my farming practices I think there
 6  is a good chance or I believe there's a great
 7  chance that some of these BMPs that are being
 8  proposed will have a negative impact on my
 9  operation.
10      Q   And you understand that to mean it will
11  increase their costs or decrease their
12  profitability?
13      A   I don't know for sure which one.
14      Q   It says negative impact, and I just
15  want you to define what negative impact is.
16  Does that mean increased costs or decreased
17  profitability?
18      A   Increased costs will decrease your
19  profitability.
20      Q   Is that what you mean by negative
21  impact?  Is that what --
22      A   That's what I believe they would mean
23  when they would make that statement, yes.
24      Q   Other than anecdotal information
25  furnished to you by some of the farmers here,

                                                 Page 154

 1  is there any expert opinion on the adverse
 2  affect or costs of profitability of
 3  implementing these BMPs?
 4      A   Not that I am aware of.
 5      Q   Turn to page 38.
 6          On the last paragraph, the first
 7  sentence:  Fertility BMPs as well as some of
 8  the water management BMPs can still work for
 9  farms suffering from excessive seepage.
10          What is your understanding of what that
11  means?
12      A   I'm not sure I understand that
13  sentence.
14      Q   Are there some farms in the EAA that
15  suffer from excessive seepage?
16      A   What are you calling seepage, that's
17  the part I don't understand.  I haven't read
18  through this thing.
19      Q   Let's stop for a second and read under
20  seepage control.
21          Would you help me and explain to me
22  what they mean when they are suffering seepage
23  control?
24          MR. EARL:  You're asking Mr. Rackley to
25      interpret what this document says?

                                                 Page 155

 1          MR. ROSENBERG:  Yes, if he can help me.
 2          MR. EARL:  If you can, ahead and do it.
 3      A   (By the Witness) I can't tell you what
 4  they are referring to here about the impact of
 5  the fertility BMPs would have as it relates to
 6  excessive seepage.  As I have said numerous
 7  times, I'm not an expert on BMPs.
 8      Q   What about seepage, is that a common
 9  problem, are you aware of seepage problems?
10      A   I'm aware of seepage, and I know what
11  they are referring to here now when they talk
12  about seepage control.  Anybody who owns a farm
13  or land next to Lake Okeechobee, where the lake
14  level is high, even if it hadn't been raining,
15  there are places where farmers have a difficult
16  time crossing the field with equipment because
17  it will be extremely wet and the equipment will
18  bog down and you can actually see it from the
19  road.  That's what I think they are referring
20  to when they say seepage next to Lake
21  Okeechobee and water conversation areas.
22      Q   Would my understanding be that those
23  farms which have those problems, the BMPs that
24  they employ there would be costlier BMPs than,
25  say, farms elsewhere in the EAA?  It would be

                                                 Page 156

 1  more costly to implement BMPs in these areas?
 2      A   Are you asking me if they are more
 3  costly?
 4      Q   Yes.
 5      A   I don't know the answer to that.
 6      Q   Can I have you turn to the next page,
 7  page 39.  It looks like those are in sort of a
 8  different order, but the same list of BMPs that
 9  we have been discussing.
10          What I don't understand is A4.  It
11  looks like it's a new BMP.  Split Application
12  of Fertilizer and Use of Slow Release Forms.
13  What do you understand that to mean?
14      A   I don't know.  I really don't.  That's
15  the first time I have noticed that one, quite
16  frankly.  It's been different from what we
17  talked about earlier.
18          MR. EARL:  As the witness says, he's
19      not an expert on BMP.  You can use your
20      time going over this BMP, which is not his
21      speciality, but I'm just saying you're
22      eating up your time, it's your decision.
23          MR. ROSENBERG:  I must tell you I'm
24      trying to shorten this, you will see a lot
25      of things underlined and highlighted.  I

                                                 Page 157

 1      understand what you are saying here.  If I
 2      don't understand something I will ask,
 3      perhaps he could help me with it, it turns
 4      out he can't.
 5      Q   (By Mr. Rosenberg) Are you aware of a
 6  study draft report by Brown and Caldwell
 7  Consultants regarding the costs of BMP
 8  implementation?
 9      A   I'm aware that Brown and Caldwell was
10  asked to do some analysis of BMP costs by the
11  Water Management District, if that's what you
12  are referring to.
13      Q   Are you aware there is a draft report
14  out by Brown and Caldwell?
15      A   It seems I recall seeing a draft
16  report.
17      Q   Is the League having anybody, as far as
18  you know, analyze that report, comment on that
19  report?  When I say having anyone, are they
20          MR. EARL:  Other than what counsel has
21      done.
22      A   (By the Witness) I don't recall that we
23  have done anything to analyze that report.
24      Q   Do you know if any members of the
25  League are undertaking analysis of that report?

                                                 Page 158

 1      A   Not that I know of, but there may be
 2  something I'm unaware of.
 3      Q   Are you aware of any critics or
 4  comments by anyone regarding the Brown and
 5  Caldwell draft report?
 6      A   I think we may be doing some analysis
 7  of the Brown and Caldwell report under
 8  attorney/client privilege work.
 9      Q   Is the League presently engaged in or
10  contracted with anybody regarding studies of
11  STAs?
12      A   I believe I have already been asked
13  that question earlier.
14      Q   I thought I asked you BMP?
15      A   STA early on.
16          But, the answer is no.
17      Q   Do you know who is, on behalf of any of
18  your members, researching STAs?  Do you know if
19  any of your members have contracted for the
20  researching of STAs?
21      A   I'm not aware of any.
22      Q   Do you know what the status of the STA
23  research is, either by any of the League
24  members or by anybody else?
25      A   I mean you want to --

                                                 Page 159

 1      Q   Do you know what the status of research
 2  is by anybody?  Are you familiar with STA
 3  research at all?
 4      A   Who's research?
 5      Q   Anybody contracted by League members or
 6  anyone else?
 7      A   I'm not aware of anybody that is.  The
 8  League certainly is not, as I have already
 9  said, and I'm not aware of any of our members
10  doing any analysis of performance of STAs
11  specifically.
12      Q   Okay.
13          MR. EARL:  And that, of course, is
14      under the same caveat, does not include any
15      work counsel may be doing.
16          Are we done with this document?
17          MR. ROSENBERG:  Hold on for a second.
18      Q   (By Mr. Rosenberg) Could I have you go
19  back to the previous exhibit.  Page 0919501.
20          MR. EARL:  Number 5 now.  Correct?
21          MR. ROSENBERG:  Yes.
22      Q   (By Mr. Rosenberg) I know you have told
23  me that turf scrubbers are not an alternative
24  now that they are looking at, but the last
25  bullet there says:  35 times more effective

                                                 Page 160

 1  than STAs.
 2          Did you know if anyone at the League or
 3  members of the League or the Flo-Sun people
 4  were doing studies on the effectiveness of STAs
 5  in order to get this statement or to make this
 6  statement?
 7      A   This statement speaks to the
 8  effectiveness of Algal Turf Scrubbers.
 9      Q   That's right, and it's 35 times more
10  effective than STAs, and I'm trying to see how
11  they can say it is 35 times more effective than
12  STAs unless they studied STAs, and my question
13  is what studies were done on STAs?
14      A   This was based on using the District
15  numbers, on using the terms of the
16  effectiveness of STAs, and comparing them to
17  Algal Turf Scrubbers.
18      Q   So, it was the District figures that
19  were picked up here and not independent studies
20  of Flo-Sun, to the best of your knowledge?
21      A   That's correct.
22          MR. EARL:  Madam reporter, you are
23      going to attach copies of the exhibits to
24      the transcript?
25          COURT REPORTER:  Correct.

                                                 Page 161

 1      Q   (By Mr. Rosenberg) As far as you know
 2  and from your questions here, there is no
 3  science that the League has that is privileged?
 4  At this point I'm not talking about the League
 5  attorney, I'm talking about the League.
 6  There's no science that you have which you
 7  claim a privilege on that you will not turn
 8  over to us?
 9      A   No.
10      Q   So the only science that will not be
11  turned over to us is science currently being
12  undertaken pursuant to counsel by the League
13  discovering this, that or the other thing, or
14  attempting to discover?
15      A   As far as I know we have turned over
16  everything through this document request.
17      Q   So the other science that has not been
18  turned over, it's my understanding there is a
19  claim of attorney/client privilege on that
20  science?
21      A   That's correct.
22      Q   But that's --
23          MR. EARL:  Attorney work product.
24          MR. ROSENBERG:  What?
25          MR. EARL:  Attorney work product.

                                                 Page 162

 1          MR. ROSENBERG:  Attorney work product.
 2          MR. EARL:  That is so long as it has
 3      been requested, the record ought to reflect
 4      if your request properly calls for it.  We
 5      haven't produced anything your request
 6      doesn't call for.
 7          MR. ROSENBERG:  Okay.  Well, my
 8      question was a bit more general than that.
 9      I have asked him questions and he said the
10      answer -- I understood the answers were,
11      there's other research going on but that's
12      privileged research at this point.  I
13      simply wanted to ask about that.  I think I
14      have the answer I want.
15          (Whereupon, Government's Exhibit No. 7
16      for Identification was marked by the
17      reporter.)
18      Q   (By Mr. Rosenberg) Sir, can I have you
19  look at Exhibit 7.  Who is Charles Haas,
20  if you know?
21      A   Charles Haas, at least he was, I think
22  he still is, the attorney for the EAA
23  Environmental Protection District.  I'm sorry.
24  I'm sorry.  That's not true.  I made a
25  misstatement.  He is the accountant or the

                                                 Page 163

 1  bookkeeper.
 2      Q   For the EPD?
 3      A   EPD.
 4      Q   This contract, this is a contract then
 5  or proposal to the EPD; am I correct?
 6      A   That's what it says.
 7      Q   Has nothing to do with the League,
 8  then?
 9      A   No.
10      Q   The League sponsor any research by
11  Forrest Izuno at the same time this contract
12  was in place?
13      A   The League gave a 30 thousand dollar
14  grant to Dr. Izuno and IFAS prior to the taxing
15  district issuing them a grant to keep some
16  research going that had started off as research
17  that was being conducted on behalf of South
18  Florida Water Management on best management
19  practices.
20      Q   Is that research that you extended by
21  your grant the same research as this Exhibit 7
22  is talking about?
23          MR. EARL:  You understand the question?
24      A   (By the Witness) You need to --
25      Q   You extended some research, I think you

                                                 Page 164

 1  just told me by Forrest Izuno, 30 thousand
 2  dollars.  What was the nature of that research
 3  that you extended, you had extended?
 4      A   The 30 thousand dollars was to allow
 5  him to keep -- as I recall, to keep all of his
 6  personnel in place that were doing BMP research
 7  on behalf of a contract that they had or grant
 8  they were operating under from the South
 9  Florida Water Management District.
10      Q   Now that 30 thousand dollar payment,
11  that was unrestricted or was it restricted?
12  Was it just a gift?
13          MR. EARL:  Objection.  Form of the
14      question.
15      Q   (By Mr. Rosenberg) Was the 30 thousand
16  dollars a gift?
17      A   It was a grant.
18      Q   Okay.  Were there any stipulations to
19  that grant?
20      A   No.
21      Q   Now, was that grant made at the same
22  time as this agreement or -- between the EPD
23  and Forrest Izuno was ongoing?
24      A   Not at the same time, no.
25      Q   Was the grant you made before this?

                                                 Page 165

 1      A   Yes.
 2      Q   Was the research that Izuno is doing by
 3  virtue of the EPD agreement, the same research
 4  that he was doing on behalf of the District
 5  that you extended by virtue of your grant?
 6      A   I haven't recently reviewed this
 7  document to see what's in here.  As I said
 8  earlier, the 30 thousand dollars was to keep
 9  the necessary staff people under Dr. Izuno, as
10  I recall, employees in place, until they could
11  present a proposal to the taxing district.
12      Q   And then what happened, the taxing
13  district then would negotiate with him to
14  extend the contract or not extend the contract,
15  or conduct the research or not conduct the
16  research?
17      A   I'm not sure exactly how it was handled
18  but it was under the domain of the
19  Environmental Protection District.
20      Q   What's the role of the EPD oversight
21  technical committee, if you know?
22      A   I don't know specifically what the role
23  is.
24      Q   Are there any members of the League on
25  the technical oversight committee of the EPD?

                                                 Page 166

 1      A   I'm -- quite frankly, I'm not even
 2  certain there is a technical oversight
 3  committee of the he EAA/EPD.
 4      Q   Peterson Consulting Limited
 5  Partnership, who is that?
 6      A   I'm sorry?
 7      Q   Peterson Consulting Limited
 8  Partnership?
 9      A   That's an economic research firm.
10      Q   And are they retained by the League?
11      A   Not directly by the League.
12      Q   Did they have any roles in the economic --
13  let me withdraw that.
14          You're aware that Dr. Grace Johns of
15  Hazen and Sawyer was doing a study for the
16  District?
17      A   Yes.
18      Q   Do you know what role Peterson
19  Consulting played on behalf of either the
20  League or any of the League members?
21      A   Initially Peterson was going to act as
22  a conduit of information, in other words, find
23  out what Hazen and Sawyer needed to do their
24  analysis, and be responsible for trying to
25  gather that information, if possible, from

                                                 Page 167

 1  various members of the Florida Sugar Cane
 2  League.
 3      Q   Did they do that?
 4      A   They did get us some information.
 5      Q   Did Grace Johns, or Hazen and Sawyer
 6  make requests of you for certain information?
 7      A   Yes.
 8      Q   And were those requests in writing?
 9      A   I don't recall if I ever got anything
10  specific from Grace Johns in writing.
11      Q   When she made requests of you, there
12  was certain of those requests that you did not
13  or could not comply with, am I correct?
14      A   There were certain requests that we
15  didn't comply with.
16      Q   Which request did she make that you did
17  not comply with?
18      A   I can't tell you specifically.  As I
19  recall there was a whole list of information
20  that she was asking for.
21      Q   Can you tell me generally?
22      A   She wanted specific farm level
23  information that related to production, and as
24  I recall, profitability and that kind of thing.
25      Q   Profitability information that "you",

                                                 Page 168

 1  the League would not have; is that correct?
 2      A   That's correct.
 3      Q   But production information, is that
 4  information that you do have at the League?
 5      A   Not at the level that she was talking
 6  about.
 7      Q   So, could I conclude then what she was
 8  asking you even if you wanted to produce it,
 9  you couldn't produce it because you didn't have
10  it?
11      A   That's correct.
12      Q   Do you know what percentage of South
13  Florida water the EAA consumes?  Is that
14  something you would know?
15      A   I don't know.
16      Q   Does the League maintain records of
17  water consumption?
18      A   No.
19      Q   Water discharge?
20      A   No.
21      Q   Earlier I read to you the preliminary
22  disclosure of what your testimony would be
23  about.  It stated again, and I will read it
24  again, because I want to ask you about parts of
25  this.  It says subject matter of your

                                                 Page 169

 1  anticipated testimony includes standing.  What
 2  do you understand your testimony is going to be
 3  regarding the issue of standing?
 4      A   Well, of course, in the second amended
 5  complaint standing is discussed quite
 6  extensively.  But, generally speaking, the
 7  Florida Sugar Cane League has, or consultants,
 8  or people working for it have represented major
 9  portions of the growers and processors of sugar
10  cane on issues that relate to the everyday SWIM
11  Plan before the Water Management District and
12  various other areas where this has been
13  discussed, and workshops, and that kind of
14  thing.  And have, from day one, been involved
15  in this on behalf of the growers and processors
16  of sugar cane.
17          The League also has as a part of its
18  charge as a trade association or an
19  organization that represents these growers and
20  processors, as part of its responsibility to
21  represent growers and processors in any of
22  those areas where there may be activity that
23  will affect their holdings in the Everglades
24  Agricultural Area, such as the way water is
25  managed, what kind of impacts that water

                                                 Page 170

 1  management may or may not have on their ability
 2  to get flood protection or irrigation water or
 3  those kinds of things.
 4          And they are very dependent on that
 5  system that was created by the Central and
 6  Southern Flood Control Project in order to be
 7  able to grow and produce sugar cane in the
 8  Everglades Agricultural Area.  As a result,
 9  anything that negatively impacts their ability
10  to do that then automatically becomes an issue
11  that the League has a responsibility to get
12  involved in.
13          The Everglades SWIM Plan does that.  It
14  causes -- it asks for some fairly significant
15  changes in the water management system that our
16  members have come to be able to depend on in
17  order to be able to grow crops.  So,
18  consequently, we feel like, from a practical
19  point of view, we certainly have a right, a
20  responsibility to be involved on behalf of our
21  members to protect those interests.
22      Q   So, when you are talking about
23  standing, you're going to testify who you are,
24  that is who the League is, what the League
25  does, historically what the League has done and

                                                 Page 171

 1  what they protect and what are their goals,
 2  that's what you mean by standing?
 3      A   I mean what I just relayed to you in
 4  the first question.  Our standing.  Our right
 5  to be involved in this issue is based on the
 6  things that I related to you in the previous
 7  question.
 8      Q   You go on -- goes on to say you are
 9  going to testify regarding the impacts of the
10  Everglades SWIM Plan on agricultural practices.
11  What do you understand your testimony is going
12  to be about?
13      A   Well, of course we haven't -- I haven't
14  done anything yet to prepare specific
15  testimony.  But, I expect to be relaying my own
16  personal observations as well as observations
17  and experiences of our members about the
18  impacts of the Everglades SWIM Plan on our
19  members' ability to grow and produce sugar
20  cane.
21      Q   For example, what sort of impacts are
22  we talking about?
23      A   Well, impacts from the change in the
24  water management system when this plan is
25  implemented.

                                                 Page 172

 1      Q   You're not saying this as an expert of
 2  any sort, but as an observer.  Is that -- do I
 3  understand correctly your testimony is going to
 4  be as an observer as to what the impacts are
 5  doing to agricultural practices in the EAA?
 6      A   My testimony will be based on what I
 7  observe but also what the members that I
 8  represent have indicated to me is a real
 9  concern of theirs as it relates to this plan.
10      Q   Well, it will be -- Well, will it be
11  substantially anecdotal?  Is that what you are
12  going to do, relate stories that your members
13  have told you as to what is happening or what
14  they anticipate is going to happen?
15      A   Well, of course, most of my testimony,
16  since I'm not an expert, will be based on
17  observation.  But the League will have experts
18  who will testify to the actual specific impact
19  of some of these decisions that will be made as
20  a result of this SWIM Plan.
21      Q   What present observations do you have
22  now regarding impacts of the SWIM Plan on
23  agricultural practices?
24      A   Well, as we have discussed earlier
25  based on some of the questions that you have

                                                 Page 173

 1  asked, crops that we grow are very sensitive to
 2  water, as are most every crop that is grown for
 3  food production; in fact, I don't know of any
 4  crops that are not sensitive.
 5          Anything that will restrict the ability
 6  of our members to get water off of their farms,
 7  anything that will prevent their ability to get
 8  water onto their farms will have a detrimental
 9  impact on their interest and their ability to
10  grow and produce food.  And that I know from
11  firsthand observation in the Everglades
12  Agricultural Area.
13      Q   What are those firsthand observations?
14  Can you relate some of that to me?  What
15  firsthand observations are you talking about?
16      A   I'm talking about the inability to move
17  water off of the property.
18      Q   Can you give me a specific farm that
19  you are talking about, or a specific instance
20  that you are talking about?  You anticipate you
21  will be talking about specific instances?
22      A   I don't know at this point in time, we
23  haven't prepared my testimony as to whether I
24  will be talking about specific instances.
25      Q   It also states that you will testify

                                                 Page 174

 1  including impacts on the League.  What impacts
 2  on the League are you going to testify to?
 3      A   Well, any impact that occurs to a
 4  League member obviously occurs to the League
 5  proper, because the League is nothing more than
 6  whatever its members are.
 7      Q   What sort of impacts are you talking
 8  about, though?
 9      A   I'm talking about the impacts that the
10  SWIM Plan will have on my members' ability to
11  grow and produce sugar cane in the Everglades
12  Agricultural Area.
13      Q   What aspects of the SWIM Plan are you
14  talking about that will have impacts?
15      A   The -- we expect that the regulatory
16  rule and the BMPs that are associated there
17  that in fact restrict water movement will have
18  an impact on water sensitive crops.
19      Q   What BMP impacts are there to date that
20  you see as having an impact on your members?
21      A   I don't know specifics as to this point
22  in time, but we do know from experience that
23  anything, as I said earlier, that restricts the
24  movement of water has a great potential to
25  cause crop damage to water sensitive crops.

                                                 Page 175

 1      Q   Other than BMP impacts what other
 2  impacts does the SWIM Plan, do you know of,
 3  that is having an affect on League members?
 4      A   Well, of course, the plan hasn't been
 5  implemented yet.
 6      Q   What do you anticipate testifying on if
 7  the plan hasn't been implemented yet?  What
 8  would you anticipate your testimony to be,
 9  then?
10      A   Well, of course, the other big aspects
11  of the Everglades SWIM Plan are the stormwater
12  treatment areas.  Stormwater treatment areas
13  will be built such that the water that leaves
14  the main canals in the Everglades Agricultural
15  Area can flow into these stormwater treatment
16  areas, and those areas are supposed to in some
17  fashion or other remove the phosphorus from
18  that water.
19          We know from experience that those
20  canals have to be able to move the water fairly
21  quickly, anything that will slow that ability
22  to move that water out of the area will have a
23  negative impact in terms of affecting water
24  sensitive crops.  I.E. Moreover, we believe it
25  will cause more often flooding.  We also

                                                 Page 176

 1  believe those stormwater treatment areas will
 2  also impact the water supply.
 3      Q   Do you expect to testify on hydroperiod
 4  issues?
 5      A   What we believe that one of the
 6  problems -- like I said, my testimony is not --
 7  we have not discussed specific testimony yet,
 8  but one of the problems with stormwater
 9  treatment areas and the current Everglades SWIM
10  Plan is it does not take into account the
11  hydroperiod impacts on the Everglades.  We
12  believe that is a much bigger part of the
13  problem, and we don't believe that the plan
14  addresses that effectively and sufficiently.
15          It does -- it does show and include
16  phosphorus as the major part of the problem.
17  It also does not look at the impacts of the
18  federal project design itself and what kind of
19  impacts the design of the system has had on the
20  hydroperiod.
21          I would suspect, although, again, I
22  said earlier my testimony has not been
23  discussed in any kind of detail, that, you
24  know, I'll be testifying at least to the fact
25  that's one of the problems of the plan is that

                                                 Page 177

 1  it's not been looked at.
 2      Q   Would it be fair to say, my asking you
 3  questions about your proposed testimony is
 4  premature?
 5      A   Specific questions, yes.
 6      Q   And the general areas you would talk
 7  about would be water supply, and BMP effects
 8  and STA effects?
 9          MR. EARL:  Objection, mischaracterizes
10      the witness' prior testimony.
11      Q   (By Mr. Rosenberg) Would the general
12  areas of your testimony include BMP effects on
13  your members?
14      A   I certainly expect that to be a part of
15  my testimony.
16      Q   STA effects on your members?
17      A   I would expect that would be a part of
18  the testimony.
19      Q   Water supply effect on your members?
20      A   I expect that to be a part of the
21  testimony.
22      Q   And what other aspects of the plan
23  would you expect to be part of your testimony
24  other than that?
25      A   I would expect to talk about the fact

                                                 Page 178

 1  that the plan seems to be based on, at least
 2  according to the technical people that I have
 3  talked to, based on inaccurate or incomplete
 4  scientific information.  That as a result of
 5  that standards are being set or proposed to be
 6  set in this plan that are so low that even
 7  rainfall that falls on our farmers and members'
 8  property would meet those requirements, and
 9  that factually the SWIM Plan is not complete.
10      Q   Okay.  In what way is the SWIM Plan
11  incomplete?
12      A   Not based on sound scientific
13  information.
14      Q   Is it incomplete in any other way?
15  Does it not take into account something else?
16      A   It doesn't take into account
17  hydroperiod, as I already mentioned, and
18  impacts of the federally designed system on the
19  remaining Everglades.
20      Q   Is it incomplete in any other way?
21      A   I'm sure it is, there are numerous
22  other ways that are pointed out in this second
23  amended complaint.  I would be glad to take the
24  time to read through them if you like.
25      Q   I have got the time, but I think your

                                                 Page 179

 1  attorney thinks this is the most boring thing
 2  he has sat through.
 3          MR. EARL:  If you would like to, I
 4      would be happy if you want to know what his
 5      testimony going to be about, it's about the
 6      petition.  So you might want to inquire.
 7      Q   (By Mr. Rosenberg) You have the
 8  petition in front of you?
 9      A   Yes, second amended complaint.
10      Q   Would you turn to page 5, then.
11  Paragraph 8.  You anticipate testifying on that
12  paragraph?
13      A   We anticipate testifying to that, sure.
14      Q   Would you turn to page 11, please.
15  Would you look at paragraph 27.
16      A   Okay.
17      Q   Do you anticipate testifying about
18  that?
19      A   Yes.
20      Q   What will your testimony be regarding
21  that subject matter?
22      A   Simply that's an aspect of the SWIM
23  Plan that has not been sufficiently researched
24  and developed as a major part of the problem of
25  the Everglades.

                                                 Page 180

 1      Q   Paragraph 27 reads:  Federally designed
 2  and State operated water control pumps and
 3  structures encompassed by the SWIM Plan have
 4  resulted in excessive loading of nutrients into
 5  areas downstream of such structures so as to
 6  unnaturally and unnecessarily increase levels
 7  of phosphorus per unit area.  Would you be
 8  testifying on that?
 9      A   I won't be testifying on the specific
10  technical support for that statement, simply
11  that that, according to this current SWIM Plan,
12  has not been dealt with as a major cause of
13  changes in the Everglades.
14      Q   So you would then point out an omission
15  in the SWIM Plan, and that's the omission you
16  would point out?
17      A   That's correct.
18      Q   Talks about excessive loading of
19  nutrients.  Where do those nutrients come from,
20  do you know?
21      A   I don't have the specifics of where the
22  nutrients come from.
23      Q   The last sentence there says -- Well,
24  let me read this.  SWIM Plan fails to identify
25  these impacts or to require action by the

                                                 Page 181

 1  federal or state government to alleviate design
 2  defects which cause such excessive loadings.
 3  You going to testify to that?
 4      A   I'm going to testify to the fact that
 5  the plan doesn't identify or deals with those
 6  impacts, either -- as I said, either in terms
 7  of identifying them as a problem or posing a
 8  solution to the problem.
 9      Q   The last sentence says:  But for such
10  federally designed structures and systems
11  phosphorus accumulations downstream of the
12  pumps and structures leaving the EAA would be
13  substantially lower.  Are you going to testify
14  to that?
15      A   I will testify to the fact that the
16  federal design of the system, as such, that the
17  water is concentrated directly below those pump
18  stations and is not, does not sheetflow as
19  natural Everglades water would have.  Not to
20  the specific impacts or the technical aspects
21  of the impact on the Everglades.
22      Q   Is there anything else regarding
23  paragraph 27 that you are going to testify?
24      A   I mean there may be when we start
25  preparing the testimony, but not that I'm aware

                                                 Page 182

 1  of now.
 2      Q   Paragraph 28.  Operational procedures
 3  and policies of the District have also resulted
 4  in excessive nutrient loading to areas which
 5  would otherwise have received substantially
 6  less phosphorus per unit area.  Is that
 7  something you are going to testify on?
 8      A   Again, that's tied to -- very closely
 9  to 27.  Here we are talking about how the
10  District operates those facilities and the fact
11  that that operation, that procedure has not
12  been properly dealt with in terms of
13  determining the impacts.  To that degree or to
14  that point I will expect to be testifying to,
15  but as to the exact impact, factual impact, I
16  don't expect to.
17      Q   The next sentence:  The SWIM Plan fails
18  to identify, evaluate and prescribe remedies
19  and Federal Project operational modifications
20  to induce such excessive loading and the
21  ecosystem impacts thereof.  Is that what you
22  will be testifying?
23      A   I expect, again, to be testifying to
24  the fact that we have not identified the
25  impacts caused by the operation of the

                                                 Page 183

 1  federally designed system.
 2      Q   Could I direct your attention to the
 3  next page, page 12, paragraph 32.
 4          Will you be testifying to that?
 5      A   I expect to be testifying to whatever
 6  degree the change in the South Florida Water
 7  Management District structures will have on the
 8  activities and members of the League.
 9      Q   Could you be more specific about that?
10  What sort of effects are we talking about?
11      A   Well, specifically what we have already
12  discussed, the STAs, obviously.  The mere
13  design and placement of STAs in the southern
14  part of the Everglades Agricultural Area will
15  restrict the movement of water.  It doesn't
16  take a rocket scientist to figure that out.
17      Q   To give elevated priority to
18  environmental purposes over regional water
19  supply and flood control.  Are you going to
20  testify to that?
21      A   Yes, I would expect to talk about the
22  fact that environmental purposes, at least
23  according to the SWIM Plan, seem to be taking
24  precedence over the original design of the
25  Central and Southern Flood Control Project

                                                 Page 184

 1  which was to provide reasonable water supply
 2  and control method for both urban and
 3  agricultural needs.
 4      Q   Next line:  Based on the SWIM Plan's
 5  erroneous factual assumptions as to
 6  environmental conditions in the EPA and the
 7  cause of such conditions.
 8          What are the erroneous facts you will
 9  assume that you are going to testify to?
10      A   I don't -- Let me back up.  I won't
11  testify as to the scientific basis of which
12  these assumption are inaccurate, but in the
13  complaint, I think further over in the
14  complaint, it lists the aspects of the
15  Everglades SWIM Plan that we object to as being
16  non factual or incomplete in terms of factual
17  information to support them.
18      Q   And you are not going to testify
19  regarding that, that will be expert testimony?
20      A   Expert testimony will talk in terms of
21  degree that factual information is lacking.  In
22  terms of the interest of my members, I expect
23  to certainly talk about the fact that we think
24  that is one of the -- those are some of the
25  major faults of the plan that they don't

                                                 Page 185

 1  factually address.
 2      Q   Paragraph 33, says:  The regulatory
 3  policies and programs, dictated by the SWIM
 4  Plan will cause Petitioners to suffer physical
 5  changes to their property, will impair existing
 6  permit rights, and will adversely affect their
 7  substantial interests and ability to conduct
 8  essential water management activities on their
 9  property to protect their crops and farming
10  operations.
11          Is that something you expect to testify
12  to?
13      A   I expect to testify to the extent that
14  the Everglades SWIM Plan and any rules or
15  permits that come out of it, the extent of that
16  impact on my membership.
17      Q   Now, when you say that impact, second
18  line here says to suffer physical changes.  I
19  gather that's an impact.  What physical changes
20  are you talking about?
21      A   Specifically the BMP Rule in order to
22  meet the 25 percent reduction is going to
23  require changes in the way the water is managed
24  on the farm.  Even some of the alternatives
25  that we propose require less pumping or call

                                                 Page 186

 1  for less pumping.
 2          Water sensitive crops are threatened
 3  when there's excess water around.  Anything
 4  that reduces the ability to provide adequate
 5  flood protection for the crops that we grow can
 6  be expected to have a negative impact on the
 7  interest of my members.
 8      Q   Is this a physical change you are
 9  talking about?
10      A   That's one of the physical changes.
11  The other, of course, is stormwater treatment
12  areas being built at the southern end of the
13  EAA which, again, will have an impact on my
14  members' ability to receive adequate flood
15  protection.
16          It also has an impact on my members'
17  ability to receive adequate irrigation water.
18      Q   How will that impact flood protection
19  or irrigation water?
20      A   I think I have already answered that
21  part about flood protection, I will try to do
22  that again.
23          Anything downstream, the water that
24  leaves EAA can't leave on its own, it has to be
25  pumped out.  When it rains in that basin that

                                                 Page 187

 1  water must be pumped out in a hurry in order to
 2  prevent flooding of our crops.  Anything that
 3  hinders or prevents that from taking place
 4  almost immediately is a threat to my members.
 5          Those stormwater treatment areas which
 6  require, regardless of the conditions, the
 7  water has to be run through those treatment
 8  areas at a very slow rate before it can be
 9  pumped out of the EAA has a great, great,
10  great, great potential to cause damages to my
11  members' interest.
12      Q   Would cause a backup during a rain
13  event and that backup because of the STAs would
14  then cause flooding to your members?
15      A   Yes.
16      Q   Is that what you would be testifying
17  to?
18      A   That's one of the points I would be
19  making.
20      Q   Okay.  What about the second point
21  there, it would cause a problem regarding
22  irrigation.
23      A   The District, the South Florida Water
24  Management District has information that
25  demonstrates that wetlands lose a great deal to

                                                 Page 188

 1  evaporatory transportation than do farmlands.
 2  Okay.  If we create additional wetlands in the
 3  southern part of the Everglades Agricultural
 4  Area and put water in there, and we are losing
 5  a great percentage, I don't have the exact
 6  percentages but the District does, and I have
 7  heard numerous presentations on this, then that
 8  loss of water is a threat to our ability to get
 9  irrigation water.
10      Q   And you will have scientists testifying
11  to that?
12      A   I expect that we'll have technical
13  experts that will talk about that impact.
14      Q   When you go on it says, and adversely
15  affect their substantial interests, are you
16  talking about economic interest?
17      A   Of course, anything that affects the
18  farmers.  They are to trying make a profit, if
19  it's an economic impact, then that's the impact
20  they are most concerned about.  That's the one
21  we at the League would primarily spend our time
22  on.
23      Q   Would you turn to page 14, please.
24  Paragraph 37.
25          The first sentence reads on September

                                                 Page 189

 1  28, 1990, the League released a final draft of
 2  the Everglades SWIM Plan.
 3          MR. EARL:  I'm sorry?  You said the
 4      League released?
 5          MR. ROSENBERG:  Excuse me.
 6      Q   (By Mr. Rosenberg) On September 28th,
 7  1990, the District released a final draft of
 8  the Everglades SWIM Plan that combined the Park
 9  and the WCAs into one water resource, and
10  contained findings and policies radically
11  different from the 1992 SWIM Plan at issue.
12          Is that something you are going to be
13  testifying on?
14      A   I don't know that I would testify
15  specifically to the difference between the 19 --
16  September 28, 1990, SWIM Plan and the September
17  1992, SWIM Plan.
18      Q   Would you look at paragraph 54, please,
19  on page 19.
20      A   Um-hmm.
21      Q   Is that something you would testify on?
22      A   I don't know at this point in time.
23  That specific statement has not been discussed.
24  I may or may not.
25      Q   Can I direct you to paragraph 56.

                                                 Page 190

 1          At the tail end of that paragraph, it
 2  says:  Caused the District to use biased,
 3  factual determination and standards.
 4          Can you identify what biased, factual
 5  determinations of this you are talking about?
 6      A   I think those are already outlined in
 7  the complaint.
 8      Q   Do you anticipate you will be
 9  testifying as to biased, factual determinations
10  and standards?
11      A   I don't know that that will be a part
12  of my testimony at this time.  I also don't
13  know that it won't.
14      Q   Would you look at paragraph 65, please.
15          Okay.  The last line or two talks about
16  alleged water quality benefits with public
17  lands.  Is that something that you would
18  anticipate testifying about?
19      A   Last line where?
20      Q   Paragraph A.
21      A   I would expect to testify to any of
22  these things -- paragraph 65 -- that we
23  believe will have a substantial impact on the
24  interest of our members, including that area.
25      Q   Do you know what's meant by alleged

                                                 Page 191

 1  water quality benefits?
 2      A   We are talking about this Plan's
 3  ability to provide improvement in water quality
 4  to public lands like the water conservation
 5  areas or Water Conservation Area 1 or the
 6  Everglades.
 7      Q   Is it going to be your testimony that
 8  there are no water quality benefits for public
 9  land by virtue of the SWIM Plan?
10      A   No, I didn't say that.
11      Q   Are there water quality benefits for
12  public land by virtue of the SWIM Plan?
13      A   Well, anything in the SWIM Plan that
14  works that causes phosphorus reduction I think
15  could have some benefit.
16      Q   Are you planning on testifying as to
17  that?
18      A   I'm sorry?
19      Q   Plan on testifying as to that?  That if
20  something works in the SWIM Plan it would have
21  a benefit, would that be part of your
22  testimony?
23      A   I don't know specifically if that will
24  be a part of my testimony.
25      Q   Paragraph, subparagraph B states that

                                                 Page 192

 1  farming activity in the EAA, by itself, causes
 2  alleged water quality violations.  What
 3  contribution do you understand farming makes
 4  regarding the phosphorus problem in the park or
 5  the water conservation areas?
 6      A   Well, first of all, as we said here,
 7  it's alleged.  I'm not convinced nor are my
 8  members convinced that there are problems in
 9  the park or the Loxahatchee Refuge that are
10  caused specifically by phosphorus and certainly
11  not phosphorus that comes from the Everglades
12  Agricultural Area.
13      Q   And you are going to testify as to
14  that?  You are going to anticipate that?
15      A   I anticipate probably answering a
16  question along the lines of alleged water
17  quality impacts.
18      Q   And stating that, would it be fair to
19  say that your testimony will be that farming
20  does not contribute to whatever problems are
21  caused in the Park in the WCA by virtue of
22  phosphorus?
23      A   I don't know that I would -- I'm not a
24  technical expert.  That kind of testimony
25  specific to the actual impacts is more likely

                                                 Page 193

 1  to be handled by technical experts.
 2      Q   The next one, subparagraph C, last two
 3  lines say Petitioners --
 4          MR. EARL:  Let him read the whole
 5      paragraph, counsel, if you are going to ask
 6      him a question.
 7      A   (By the Witness) Okay.
 8      Q   That last line talks about "all alleged
 9  impacts."  Is there a percentage of the alleged
10  impacts that are caused by farmers or
11  agricultural practices?
12      A   Where?
13      Q   I'm taking your paragraph here:  If
14  remedies for such excessive phosphorus loading
15  had been properly allocated to the federal
16  government and to the District, Petitioners
17  would not be unfairly held responsible for all
18  alleged impacts.
19          Now assuming that we would have this
20  allocation, what allocation would you make for
21  farmers?
22      A   That answer -- the answer to that
23  question has never been determined.  The
24  District nor anyone else that I know of has
25  ever been able to determine what, if any,

                                                 Page 194

 1  impacts have been caused by phosphorus that
 2  leaves the land in the Everglades Agricultural
 3  Area.
 4      Q   Would you then be prepared to testify
 5  that there are no impacts attributable to
 6  farmers?
 7      A   No, I didn't say that.  Nor would I be
 8  willing to testify to that.
 9      Q   And if that's true, then what
10  percentage?  And I'm not going to hold you to
11  an exact number.  Is there a given percentage?
12      A   I don't know the percentage.  We
13  haven't answered that question.  That's one of
14  the problems with this plan, it is not
15  allocated.
16          Let me back up.  It hasn't even
17  determined what the damage is in the Park and
18  WCA-1 specifically, and whether or not there is
19  a direct link between phosphorus and whether or
20  not that direct link with phosphorus, if it
21  does exist, can be linked back to water that
22  comes from the Everglades Agricultural Area.
23  That's not to say there are not some impacts,
24  we just don't know, and this plan fails to
25  evaluate that.

                                                 Page 195

 1      Q   Let me turn your attention to paragraph
 2  67 C.
 3      A   I'm sorry, did you say B?
 4      Q   C.
 5          Is that something that you would be
 6  testifying to?
 7      A   I would expect to testify to the fact
 8  that the current SWIM Plan seeks to hold
 9  farmers responsible for the loading of
10  phosphorus and other water quality constituents
11  resulting from the federal design or the
12  District operation of the federal project,
13  simply because we don't see any evidence in
14  this plan that anyone else has been pulled in
15  and called the culprits or said to cause the
16  problem, all the reference is to EAA farmers.
17      Q   What do you understand the farmers'
18  responsibility to be regarding phosphorus
19  loadings and the removal of water with
20  phosphorus from the EAA?
21          MR. EARL:  Objection, calls for a legal
22      conclusion determining a legal
23      responsibility.  Form of the question,
24      also.
25      Q   (By Mr. Rosenberg) Do you understand

                                                 Page 196

 1  that the farmers have a responsibility, to any
 2  extent, regarding the water that they use and
 3  then they send out of the EAA?
 4          MR. EARL:  Objection.  Calls for a
 5      legal conclusion.
 6      Q   (By Mr. Rosenberg) Are you able to
 7  answer the question?
 8          MR. EARL:  You can answer it if you
 9      can.
10      A   (By the Witness) I can't answer the
11  question.
12      Q   Do you understand that the farmers have
13  any responsibility, is my question, regarding
14  water leaving the EAA?
15          MR. EARL:  Calls for a legal
16      conclusion.
17      A   (By the Witness) I can't answer the
18  question.
19      Q   Would you look at paragraph I?
20      A   Still on 67?
21      Q   Page 24.
22      A   Okay.
23      Q   Has the League determined a water
24  budget for areas regulated under the SWIM Plan?
25      A   I'm sorry.  Repeat the question.

                                                 Page 197

 1      Q   Has the League determined a water
 2  budget for areas regulated under the SWIM Plan?
 3      A   No.
 4      Q   Paragraph J.  Has the League identified
 5  sources of phosphorus loading into the EPA from
 6  outside the EAA?
 7          MR. EARL:  Object to the form of the
 8      question, counsel.  This assumes -- the
 9      League is not the regulatory agency.  If
10      you mean to infer that the League has some
11      obligation, the League is not promulgating
12      a SWIM Plan or regulations, that would be
13      the District's obligation.
14          MR. ROSENBERG:  That would be fine if
15      that's his answer, but he hasn't done it.
16          MR. EARL:  If you know, Mr. Rackley, if
17      it's not the work of attorney work product.
18      A   (By the Witness) I don't recall that we
19  have ever done anything to specifically
20  identify all the sources of phosphorus.
21      Q   Would you turn to page 26, please.
22  Paragraph AB.  Is that something you will
23  testify to?
24      A   I would expect to testify to the fact
25  that the SWIM Plan doesn't do that.

                                                 Page 198

 1      Q   Does the League have -- What are the
 2  less costly alternatives to STAs that the
 3  League has, if any?
 4      A   We believe the alternative plan is less
 5  costly.
 6      Q   Is that the one we just went through
 7  earlier today?
 8      A   Yes, sir.
 9      Q   And that alternative plan will remove
10  150 tons, is that your testimony?
11      A   No, that was not my testimony.
12      Q   How many tons of phosphorus will that
13  alternative plan remove by 1996?
14          MR. EARL:  Calls for opinion testimony.
15      Q   (By Mr. Rosenberg) The plan itself says
16  150 tons, would you be prepared to testify that
17  that plan would remove 150 tons?
18      A   I can't testify to the feasibility of
19  that plan, that would be someone else.
20      Q   Would you turn to page 30, paragraph W.
21          MR. EARL:  Just a second, counselor.
22      W?
23          MR. ROSENBERG:  W.
24          MR. EARL:  You're on page 30.
25          MR. ROSENBERG:  Yes.

                                                 Page 199

 1          MR. EARL:  W, right?
 2          MR. ROSENBERG:  Isn't that paragraph W
 3      there?
 4          MR. EARL:  Yes.
 5      Q   (By Mr. Rosenberg) Is that something
 6  you will testify to?
 7      A   No, I wouldn't testify to any
 8  requirement of Florida law.
 9      Q   What about funding assumptions, do you
10  know what is meant by funding assumptions?
11      A   Not specifically here, as it's used
12  here.
13      Q   Look at paragraph Y.  Is that something
14  you would testify to?
15      A   I wouldn't expect to.
16      Q   Okay.
17          Sir, the notice of deposition duces
18  tecum requested you to produce certain
19  documents, and I see you have 12 boxes here.
20  Can you go through some of the items here, can
21  you look through the paragraphs with me and can
22  you tell me what was produced, to the best of
23  your knowledge?
24      A   I can't give you specifics.  What we
25  did is that it was such a broad request,

                                                 Page 200

 1  anything that had to do at all with those
 2  topics that I could determine, we tried to
 3  produce.  If I erred, I erred on the side of
 4  producing too much.
 5          I believe those documents are laid out
 6  in that box based on the paragraphs that they
 7  respond to.
 8      Q   So paragraph 1, which is:  Provide all
 9  documents that explain and describe EAA
10  agricultural practices, including but not
11  limited to the agricultural practices of the
12  Florida Sugar Cane League.  That's been
13  designated in a specific box, or how has that
14  been categorized?
15      A   I think each of the boxes have notes on
16  them as to which question they are responding
17  to.
18      Q   Carton 5; 1, 3, 5, 6 and 9?
19      A   That's correct.
20      Q   And box 6; 1, 3, 5, 6 and 9?
21          MR. EARL:  Counsel, that's the problem
22      the witness is talking about, these
23      requests are so broad there's a lot of
24      overlap.
25      Q   (By Mr. Rosenberg) My question was

                                                 Page 201

 1  where it has those numbers on there it would
 2  respond to those items, of which one document
 3  may be responding to four different item
 4  requests; am I correct?
 5      A   That's possible.  That's possible.
 6  There could be a document in there that
 7  responds to more than one question on the
 8  request for document production.
 9      Q   I haven't gone through each box.  If I
10  can direct your attention to paragraph 7 here.
11  Where are the documents furnished regarding
12  paragraph 7?
13      A   I don't know, but I can go over and
14  look on a box if you want me to.
15      Q   Would you?  I just have a few questions
16  here.  I don't mean to --
17          MR. EARL:  Want to bring the boxes
18      over, counsel?
19          MR. ROSENBERG:  I don't want to bring
20      12 boxes over.
21          You're talking about 7, I want to know
22      if they have these documents and if they
23      furnished them.  I'm not asking much more
24      than that.
25          If they have documents on fertilizer

                                                 Page 202

 1      application, crop mix, crop rotation, soil
 2      depth, are those documents that he knows
 3      that have been produced.  He may well tell
 4      me we don't have those documents at the
 5      League.  I don't know.
 6      A   (By the Witness) What I'm telling you,
 7  if it's here, it's in one of those 12 boxes
 8  over there.  I can't tell you specifically
 9  which box it's in or -- specifically, because I
10  don't recall.  There's 12 boxes.
11      Q   I'm not asking you a specific box, are
12  there items in the boxes that would respond to
13  paragraph 7?  As far as you know.
14      A   If we had documents that responded to
15  paragraph 7 it would be marked.
16      Q   That's what I'm asking, did you have
17  any?
18      A   What I'm telling you is I don't know
19  unless you want me to look at each one of them.
20  I don't recall.
21      Q   I don't see any markings on top of box
22  8.  Did you mark them on the top of every box?
23  Or inside the lid?
24          MR. EARL:  Some of them have markings
25      on the side, also.

                                                 Page 203

 1      Q   (By Mr. Rosenberg) This is box 2, and
 2  box 8.  Are there any markings on box 8?
 3          MR. EARL:  Part of the problem this had
 4      to be taken out to a copy service, and they
 5      were working on this late last night.
 6          MR. RUSSELL:  I think this just
 7      corresponds with those.  It should probably
 8      say the same as these, we tried to keep
 9      them separated.
10          MR. ROSENBERG:  I can see responses to
11      1, 3, 5, 6, 9 now in front of me we have 2,
12      4, 7.
13          In box 2.  Okay.  Is there anything
14      that --
15          There's nothing that corresponds to
16      paragraph 10, am I correct?
17          MR. EARL:  I believe that's correct.
18          MR. ROSENBERG:  And items 2, 4, 7, 8,
19      11, 13, and 14 are all contained in box 2
20      only; is that correct?
21          MR. EARL:  I don't know.  What do the
22      rest of the boxes say?
23          MS. SOLOMON:  The other boxes say 1, 3,
24      5, 6 and 9.
25          MR. ROSENBERG:  Except for this box,

                                                 Page 204

 1      box 8 which says nothing.
 2          MR. RUSSELL:  I think it didn't get
 3      marked.
 4          MR. ROSENBERG:  Do you know what is in
 5      box 8?
 6          MR. RUSSELL:  Yes, the same as those.
 7          MR. ROSENBERG:  The same as 1, 3, 5, 6
 8      and 9.
 9          MR. ROSENBERG:  Well, I would like a
10      recess, it's ten to four, because I would
11      like to go through at least this box at
12      this point.
13          What's your pleasure?
14          MR. EARL:  We got one more day, you can
15      decide.
16          MR. ROSENBERG:  All right.  I have got
17      all these boxes here.  I will adjourn this
18      thing for now and we will back tomorrow
19      morning.  By that time I will have had a
20      chance --
21          MR. EARL:  Let me also clarify that Mr.
22      Rackley --
23          MR. ROSENBERG:  Off the record.
24          (Whereupon, an off the record
25      discussion was had.)

                                                 Page 205

 1          MR. ROSENBERG:  Mr. Rackley, before we
 2      talked about the boxes, I asked you
 3      regarding your testimony, the areas
 4      regarding your testimony.  Is there any
 5      area regarding your testimony that you know
 6      that you are going to testify to now that I
 7      haven't asked you about?
 8      A   (By the Witness) I don't think there is
 9  anything, at least today.  That doesn't mean
10  there won't be something later on.
11          MR. ROSENBERG:  All right.
12          (Whereupon, an off the record
13      discussion was had.)
14          MR. EARL:  Counsel, we are prepared --
15      as you know Mr. Rackley is here, he's going
16      to be here tomorrow, we are prepared to go
17      later if you would like to, and start the
18      documents tomorrow.  It's your option.
19          MR. ROSENBERG:  I think I told you
20      earlier that I didn't feel well and I was
21      having a reaction to asthma and asthma
22      medication.  I think you have seen me at
23      least once, maybe twice I took some
24      Tylenol, so I'm not feeling very well.
25          MR. EARL:  Okay, counsel, that's

                                                 Page 206

 1      agreeable.
 2          Now, the only thing I would ask here is
 3      that I have gone through this box 2, and I
 4      have responses to every paragraph on a
 5      duces tecum except for 7, item 7.  I would
 6      simply ask Mr. Rackley to look at that and
 7      to tell me whether there are responses to
 8      item 7 or whether there are not.
 9          MR. RUSSELL:  You don't have any to 10.
10      Now, I believe you got most of those
11      documents, the settlement agreement, and
12      there were thousands of pages that were
13      produced by the state agencies.
14          MR. EARL:  And also the secret
15      settlement agreement that --
16          MR. ROSENBERG:  I'm not quarreling with
17      10.
18          MR. EARL:  We are just telling you we
19      are not producing any, but you have those.
20      Look, you have some of those that we don't
21      have access to.
22          MR. ROSENBERG:  I had not seen 7, I
23      just wanted that pointed out to me.
24          MR. RUSSELL:  It was underneath 4.
25          MR. EARL:  Okay, counsel, we understand

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 1      your condition and we'll adjourn at your
 2      request.
 3          MR. ROSENBERG:  Let me ask him one or
 4      two more questions.  I'm holding a box of
 5      something, what is this?
 6          MR. RUSSELL:  There it is.  Right
 7      there.  It says right there, Hutcheon data.
 8          MR. ROSENBERG:  Okay.
 9          MR. EARL:  It goes with the Hutcheon
10      documents.  These are duplicates of slides
11      of one of his presentations.
12          MR. ROSENBERG:  Okay.  Having said
13      that, I will see you here tomorrow.  I
14      don't think -- we are off the record.
15          (Whereupon, an off the record
16      discussion was had.)
17          MR. ROSENBERG:  Okay.  Let the record
18      reflect I'm offering you to be here at ten,
19      you can come at nine.  It's your call.
20          MR. EARL:  At your urging we will be
21      here at ten.
22          MR. ROSENBERG:  We'll do it at nine.
23          (Whereupon, an off the record
24      discussion was had.)
25          MR. EARL:  Okay.  Thank you.  We'll see

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 1      you tomorrow morning at nine.
 2          (Whereupon, the deposition was
 3      adjourned at 4:00 p.m.)
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