1

DIVISION OF ADMINISTRATIVE HEARINGS

2 DEPARTMENT OF ADMINISTRATION

STATE OF FLORIDA

CASE NOS. 92-3038, 92-3039, 92-3040

5 SUGAR CANE GROWERS COOPERATIVE

OF FLORIDA, et al.,

Petitioners,

vs.

SOUTH FLORIDA WATER MANAGEMENT

9 DISTRICT, an Agency of the

State of Florida, et al.,

Respondents.

250 Australian Avenue South

15 West Palm Beach, Florida

December 7, 1992

16 9:00 a.m. - 11:40 a.m.

19 DEPOSITION OF RAYMOND ROTH, JR.

22 Taken before Lance W. Steinbeisser,

23 Court Reporter and Notary Public in and for the

24 State of Florida at Large, pursuant to Notice of

25 Taking Deposition.

1 A P P E A R A N C E S

3 ON BEHALF OF THE PETITIONERS:

4 PEEPLES, EARL & BLANK

One Biscayne Tower

5 Suite 3636

Two South Biscayne Boulevard

6 Miami, Florida 33131

BY: MR. RICHARD A. RUSSELL, ESQUIRE

ON BEHALF OF THE RESPONDENTS:

U.S. Department of Justice

10 Environment and Natural

Resources Division

11 General Litigation Section

P.O. Box 663

12 Washington, D.C. 20044

BY: MR. GEOFFREY GARVER, ESQUIRE

ON BEHALF OF MR. RAYMOND ROTH:

Jeffrey J. Ward, Esquire

16 P.O. Box 666

Belle Glade, Florida 33403

19 I N D E X

WITNESS DIRECT CROSS

RAYMOND ROTH, JR. 3 --

1 E X H I B I T S

3 EXHIBIT MARKED ON PAGE

4 ROTH 1 Application for a Works 44

of the District Master

5 Permit

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1 Thereupon:

2 RAYMOND ROTH, JR.,

3 the witness, was duly sworn to tell the truth, the

4 whole truth, and nothing but the truth and

5 testified as follows:

6 DIRECT EXAMINATION

7 BY MR. GARVER:

8 Q. Good morning, Mr. Roth.

9 A. Good morning.

10 Q. My name is Jeff Garver. I'm an attorney

11 for the United States Department of Justice. I

12 represent the United States in this matter, which is

13 Sugar Cane Growers Cooperative of Florida, et al.

14 versus South Florida Water Management District.

15 The case number is 92-3038, 3039, 3040 in the

16 Florida Division of Administrative Hearings.

17 With us in the room are Jeff Ward and Richard

18 Russell.

19 Mr. Roth, have you ever had your deposition

20 taken before?

21 A. I think one time before.

22 Q. Okay. Well, what's going to happen here

23 is: I'm going to ask you a series of questions and

24 I would just like you to listen carefully. Give me

25 your complete and honest answers to my questions.

1 If you hear a question you don't understand -- I'm

2 probably going to be asking you about things you

3 know more about than I do. So please let me know if

4 you have trouble understanding where I'm going and

5 I'll try to rephrase the question.

6 A. Okay.

7 Q. Have you read the deposition notice for

8 your deposition?

9 A. I had a notice, yes.

10 Q. And you read that?

11 A. Yes.

12 Q. Have you provided all the documents that

13 were requested in the listing in the back of that

14 notice?

15 A. I believe so.

16 Q. Okay. Mr. Roth, what do you understand to

17 be the areas on which you will testify at the final

18 hearing in this matter?

19 A. Well, I assume it would be on farming

20 practices in the Everglades Agricultural Areas,

21 seeing that I'm a farmer and landowner in the

22 Everglades Agricultural Area.

23 Q. Mr. Roth, where do you live?

24 A. I live in Wellington. It's an

25 unincorporated area west of West Palm Beach.

1 Q. Okay. And how long have you lived in

2 Wellington?

3 A. I've lived in Wellington for 14 years and

4 a native of Palm Beach County.

5 Q. And when were you born?

6 A. 1952.

7 Q. Okay. What is your occupation, Mr. Roth?

8 A. I'm a principal owner and president of

9 Roth Farms, Incorporated. It's an agricultural

10 operation in Belle Glade, Florida.

11 Q. How long have you been in that occupation?

12 A. Sixteen years.

13 Q. What did you do prior to your work with

14 Roth Farms?

15 A. School, high school, college.

16 Q. Where did you go to college?

17 A. Emory University in Atlanta, Georgia.

18 Q. What did you study at Emory?

19 A. I received a Bachelor of Science

20 Mathematics.

21 Q. Did you take any courses in agriculture

22 when you were at Emory?

23 A. They don't offer any. I did not.

24 Q. Have you ever taken any courses or

25 seminars related to agriculture?

1 A. Oh, yeah, all kinds. Sure have. Sure.

2 Q. Were those courses mostly post-college

3 courses then?

4 A. They were, what you would call, night

5 classes -- you know, short two or three-week classes

6 on farming practices -- you know, agronomy, soil

7 chemistry, a little built here and there. Not

8 really a lot. Just a little.

9 Q. Who's offered those courses that you've

10 taken?

11 A. There were several offered through the

12 Palm Beach Community College system.

13 Q. How many of those courses would you say

14 you've taken, approximately?

15 A. Two or three, something like that. I'm

16 not sure.

17 Q. Have you taken any courses specifically

18 geared towards Best Management Practices?

19 A. No, no, not really.

20 Q. When was Roth Farms established?

21 A. My father Ray Roth started farming in

22 Belle Glade in 1940. So I would think that it would

23 be good to say it was established in 1949.

24 Q. And how long has the Roth family been

25 farming in the Everglades Agricultural Area?

1 A. Since 1949.

2 Q. Was Roth Farms incorporated in 1949?

3 A. No. I think it was around 1961, '62,

4 somewhere in that range. Before that it was called

5 W.D. Roth and Son.

6 Q. What crops does Roth Farms grow?

7 A. We grow a variety of vegetables, sugar

8 cane, rice and sod.

9 Q. What kind of vegetables do you grow?

10 A. Primary radishes and mini carrots, parsley

11 and Chinese cabbage at this time. We've grown other

12 vegetables, but that's the ones we're currently

13 growing.

14 Q. And how much land does Roth Farms farm?

15 A. A little over 4,000 acres.

16 Q. How long has Roth Farms been farming that

17 acreage, that 4,000 plus acreage?

18 A. We've grown a little bit in the last few

19 years. So I'd say the last five years, it's been

20 that much. It's grown a little bit in the last --

21 you know, five years.

22 Q. What was the original farm in 1949? How

23 large was that farm, if you know?

24 A. Ten acres. Ten acres.

25 Q. Okay. And when was the first addition or

1 growth in the farm?

2 A. Well, there was lot of growth obviously;

3 but my father purchased some lands in the 1950s and

4 some land in the 1960s and some land in the 1970s,

5 purchased land in the 1980s, purchased land in 1990,

6 so we've been growing since -- you know, ever since

7 1949.

8 Q. Do you own all the land? Does Roth Farms

9 own all the land that it farms?

10 A. The large majority, if I had to guess a

11 percentage, is probably 90 percent. We do lease

12 some. It's pretty a typical practice to lease land

13 from absentee owners.

14 Q. Who do you lease land from?

15 A. We lease land from two parties right now.

16 Florida Power & Light has some property, a twenty

17 mile bill, and we also lease from two absentee

18 owners that live in the Palm Beach County area.

19 Q. What do you mean by absentee owners?

20 A. Well, they don't live in Belle Glade. I

21 mean, they don't farm the lands. We call them

22 absentee owners. They lease the land and it's like:

23 As long as you send me the check, you don't hear

24 from them.

25 Q. Okay. Do you know how much land in the

1 EAA is owned by absentee owners?

2 A. No. I really don't know offhand; to tell

3 you the truth, no.

4 Q. How much of the land do you farm is owned

5 by absentee owners?

6 A. I think it's closer to about 500 acres.

7 About 500 acres.

8 Q. I believe you testified that you grow

9 sugar cane, variety of vegetables, sod?

10 A. And rice.

11 Q. And rice; is that correct?

12 A. That's correct.

13 Q. Was that the list you gave me?

14 A. Um-hum.

15 Q. How many acres do you have at the present

16 time in each of those different crops?

17 A. This year we're going to harvest about a

18 little over 2,000 acres of sugar cane, about 2,500

19 acres of radishes and then the other vegetables

20 we're probably going to add another -- another 500

21 acres of other vegetables and then maybe about 500

22 acres in sod.

23 No rice at this time. It's off-season for

24 rice.

25 Q. Okay. The acreages you just gave me --

1 A. Don't add up --

2 Q. To 4,000. That's right.

3 Did the acreage you just cover include some

4 land more than once?

5 A. Sure.

6 Q. Why is that?

7 A. Well, you grow radishes in 30 days. So

8 you have -- I was giving the total numbers of acres

9 we'll plant in a year of radishes.

10 Q. So if you plant ten acres three times, you

11 count that as 30 acres?

12 A. Right, exactly.

13 Q. How many rotations can you get in a

14 growing season for radishes?

15 A. Six or seven.

16 Q. And what is the growing season for

17 radishes?

18 A. How long?

19 Q. Yes.

20 A. Twenty-five or 30 --

21 Q. The total growing season within a year?

22 A. The harvesting period is October through

23 May, from about the 1st of October to the end of

24 May.

25 Q. Okay.

1 A. That's eight months.

2 Q. Is that the same growing season for other

3 vegetables that you grow?

4 A. No, it's a little bit longer. Leafy

5 vegetables would be mid-November through early May,

6 maybe the 1st of May would be lettuce or leafy

7 vegetable season.

8 Q. And what about sod?

9 A. Sod is year-around.

10 Q. Are there different water management

11 requirements or systems set up for the different

12 crops that you grow?

13 A. No, not in different systems. I mean, you

14 obviously -- you know, each crop is a little bit

15 different -- even what its needs are, but the system

16 is main-draw canals and pump stations and lateral

17 ditches and are uniform throughout the whole area.

18 Q. And what types of operations do you run

19 differently for different crops that you grow in

20 terms of water management?

21 A. How -- ask me again. I don't quite

22 understand.

23 Q. How do you manage water differently for

24 different crops that you grow?

25 A. Well, that's not a very -- that's a very

1 complex question. Really, not that differently.

2 What you're really talking about is during rainfall

3 events you would manage them differently.

4 During normal events you manage them about the

5 same. You just control the water table, maintain a

6 water table about 24 inches below ground level to

7 keep the crops, the root system dry but also to keep

8 the water table high enough so they can get water.

9 As far as actual growing it's -- there's not

10 that much difference except for rice. Vegetables

11 and sugar cane are growing about the same.

12 Q. The vegetables you grow, you try to

13 maintain the water table at about 24 inches for all

14 of those crops?

15 A. Right.

16 Q. And what do you do differently in rainfall

17 that's for different crops?

18 A. Well, very basically vegetables are

19 very -- are not very tolerant of water. They grow a

20 lot faster and they cannot stand a lot of water.

21 The topsoil we have is a very absorbent kind of

22 soil. So anytime you have a significant rainfall

23 you would have to remove the water immediately,

24 would be the normal practice; and sugar cane doesn't

25 have to be removed immediately.

1 So we try to limit the pumping for sugar cane,

2 except in cases of harvesting or planting. Then you

3 would treat it just the same as vegetables; you

4 would pump it out immediately.

5 Q. How do you gauge when to pump during a

6 rainfall event for vegetables?

7 A. It's really subjective. It's based on the

8 soil moisture and the grounds. It's based on how

9 much rainfall you got. It's based on where the

10 vegetables are located on that farm, if that's the

11 dryer, higher land on that farm; or if it's the

12 lower area, it's gauged on how much rain fall you've

13 got perceiving the rainfall.

14 If you hadn't had any rain in two months, one

15 inch of rain is good news. You don't pump it out.

16 It's very subjective of a lot of factors that go

17 into it.

18 Obviously the other factor is the level of

19 water in the canal at the time of the rainfall

20 event. If the water is very recent, then you

21 wouldn't pump it. If the water is very high because

22 of lack of rainfall, you would have to pump sooner.

23 You have a multitude of factors, weather

24 conditions following the rainfall event. If it's

25 going to be cold, then you wouldn't be one to pump

1 because there might be a freeze coming out after the

2 rain. It's pretty complicated.

3 Q. Who makes the decision at Roth Farms?

4 A. It's a cooperative decision between my

5 farm manager and myself. It's pretty much left --

6 you know, I mean, there's -- there can be some. If

7 it's obvious it's going to rain a lot -- I mean, the

8 pumps will be started right away.

9 So it doesn't require consultation; but if

10 it's a light rainfall, there will be a decision made

11 by me and my farm manager.

12 Q. I believe you said that in a dry period

13 you keep the water levels in the canals high; is

14 that correct?

15 A. Um-hum.

16 Q. And why is that?

17 A. Yes, I do.

18 Q. Why is that?

19 A. Because of the needs of the crop. Lack of

20 rainfall, the soil will dry out over a time with

21 northerly wind, dry wind. You have a lot of dust

22 problems and such. You keep the water table high in

23 order to -- so the crop can get the moisture it

24 needs.

25 Q. I'm probably asking a lot of simple

1 questions here.

2 A. I'll try to give you simple answers.

3 Q. Has the land firm by Roth Farms subsided

4 at all during the time?

5 A. Yes.

6 Q. How much has that subsided, generally?

7 A. It really would be speculation for me to

8 say. We haven't kept records. I mean, everybody --

9 there's a date that says half an inch to an inch a

10 year but we really don't know. We haven't been

11 keeping records.

12 Q. How do you notice that it has subsided?

13 A. Oh, sure. Over twenty years, sure.

14 Q. What observations have you made that shows

15 subsides?

16 A. It's just obvious that the ditches are not

17 as deep as they used to be. Like I said, there

18 hasn't really been any requirement now or need to

19 actually measure the depth. You pretty well know

20 what the depth of the fields are before they hit

21 rock. I mean, it's pretty much common knowledge.

22 You're farming the land. You know on this farm if

23 the muck is seven feet deep and over here it's over

24 three foot deep, but I have seen it go down, yes.

25 Q. Most of the land you farm is in the S5A?

1 A. Yes, yeah, most of it is. I have some in

2 other areas. We're really pretty spread out,

3 really. I have some that goes SA-5 and some that

4 goes in the Hillsboro Canal. That would be the S-6,

5 I guess, and then I have some up here, Pahokee. So

6 I've got pretty spread out --

7 Q. Okay. What do you believe has caused the

8 soils to subside?

9 A. Farming the land and draining the land in

10 order to be able to farm it. Contact of the soil

11 with oxygen in the air causes chemical reaction

12 which releases the nitrogen from the soil. The soil

13 is primarily nitrogen. So the soil is actually

14 evaporating.

15 Q. How does subsidence effect farm

16 operations?

17 A. Largely, except obviously the nitrogen in

18 the soil is being used as a crop fertilizer. So

19 that's what makes the land so productive is you

20 don't have to add and most vegetable operations you

21 don't add hardly any nitrogen fertilizer which is

22 completely unheard of in other areas.

23 You add very little nitrogen to the fertilizer

24 to the soil. So that's what you're doing is you're

25 using the nitrogen in the soil. It's there and

1 you're using it. So I guess in some ways it's a big

2 benefit, but it's, you know --

3 Q. Are there any areas of Roth Farms that

4 have become difficult or impossible to farm because

5 of subsidence?

6 A. No.

7 Q. Are you concerned at all that any of the

8 land that Roth Farms farms may become difficult or

9 impossible to farm because of subsidence?

10 A. Of course. Some day.

11 Q. When do you anticipate subsidence may

12 become a problem in that respect making it difficult

13 to farm?

14 A. It's a good question. I don't know the

15 answer. It's been -- agriculture has been saying

16 it's going to be gone in twenty years for the last

17 twenty years, so it's hard to say. I'm sure it's

18 not going to be a concern in my lifetime. It might

19 be a concern for my son.

20 Q. Is Roth Farms in the Florida Sugar Cane

21 League?

22 A. Yes.

23 Q. What benefits does Roth Farms obtain from

24 being in the Florida Sugar Cane League?

25 A. In a broad sense -- you know, cooperation

1 with other members in the league; information -- you

2 know, I request information from them all the time

3 as to information they have about the sugar cane

4 industry and what they're doing -- you know, public

5 relations-wise and what are -- we have a good

6 working relationship.

7 Q. And is Roth Farms in the Sugar Cane

8 Growers Cooperative?

9 A. One of the founding members.

10 Q. And what benefits does membership in the

11 Sugar Cane Growers Coop provide Roth Farms?

12 A. The benefits are numerous but the primary

13 one is they grind all my sugar cane and take care of

14 the harvest and operation and provide me with -- you

15 know, any information I need as to varieties and

16 that type of information.

17 So again, they provide a lot of public

18 relations -- you know, functions on my behalf and on

19 behalf of the industry.

20 Q. Why is Roth Farms in both the Sugar Cane

21 Growers Coop and the Florida Sugar Cane League?

22 A. I guess because we've always had been.

23 We've been members of the Florida Sugar Cane League

24 and members of the coop ever since we started

25 growing sugar cane.

1 Q. Is Roth Farms in the Florida Fruits and

2 Vegetable Association?

3 A. Yes.

4 Q. And what benefits does membership in the

5 Florida Fruits and Vegetable Association provide

6 Roth Farms?

7 A. Numerous benefits, being public relations,

8 information, consultation on labor issues, pesticide

9 issues -- you know, just a wealth of information.

10 That's who we look to when we're having

11 specific labor or pesticide type problems. They

12 have people on staff that that's their job to be

13 well-informed on the issues. The banning of

14 chemicals or the release of new chemicals that can

15 be used -- you know, safety seminars. Just

16 you -- you know. They're a grower organization that

17 provides a wealth of information to the growers.

18 Q. Has Roth Farms gone to one hundred percent

19 mechanical harvesting sugar cane?

20 A. Roth Farms does not harvest the sugar

21 cane. Roth Farms is a member of the Sugar Cane

22 Growers Cooperative who has gone to one hundred

23 percent harvest. The mills harvest the cane. The

24 growers grow it and the mills harvest it.

25 Q. Do you use mechanical harvesting or is

1 mechanical harvesting used for any of your vegetable

2 crops?

3 A. Yes.

4 Q. What vegetable crops do you mechanically

5 harvest?

6 A. Radishes, carrots and white radishes and

7 sod.

8 Q. Do you use manual labor to harvest

9 vegetable crops?

10 A. Yes, yeah. You use manual labor to

11 harvest Chinese cabbage and parsley. They're cut

12 and packed by hand, sure.

13 Q. Does Roth Farms have a consumptive use

14 permit for water?

15 A. Sure, have many.

16 Q. And does Roth Farms have any surface water

17 management permits?

18 A. Have one of each for each farm.

19 Q. Do you do any monitoring of any kind of

20 water use in connection with the consumptive use of

21 these water management permits?

22 A. Do we monitor the quality together with

23 the quantity? Which are you asking?

24 Q. I'm asking both actually.

25 A. We are in the process now of setting up.

1 We've started to do monitoring. We're monitoring on

2 one farm location, and we are setting on to start on

3 all the others because -- you know, because of the

4 new -- I guess it's 40E-63, whatever regulations for

5 water quality and quantity monitoring.

6 Q. The one farm where you already have one

7 monitoring, what kind of monitoring are you doing?

8 A. It's a project -- they're auto samplers

9 where they're monitoring quality and quantity.

10 Q. And when were those monitoring systems set

11 up?

12 A. I'm not sure of the exact date. I think

13 it was early September.

14 Q. Of this year?

15 A. Of this year.

16 Q. And prior to that did you have any water

17 quantity or quality monitoring with your farms?

18 A. No.

19 Q. Which farm unit is it that has monitoring

20 right now?

21 A. It's called Gladeview Farm.

22 Q. What is the smallest unit of land you use

23 for water management on your farms?

24 A. What do you mean? You mean, what's the

25 smallest farm I have?

1 Q. I guess what I'm asking is: What is the

2 smallest unit of land that would be serviced by one

3 pump?

4 A. I have one farm that has a -- about a

5 hundred and fifty acres. I guess that's the

6 smallest size, a hundred and fifty acres.

7 Q. Do you have more than one unit of

8 approximately a hundred and fifty acres that you

9 service with one pump?

10 A. I have several pieces -- several small

11 pieces. They are different sizes than a hundred and

12 fifty.

13 Q. Okay. What is the largest unit of land

14 you service with one pump?

15 A. Just one pump? Just one pump? About 550

16 acres. I mean --

17 Q. Is there a unit size of land that you aim

18 towards in trying to service --

19 A. No.

20 Q. -- an area with a pump?

21 A. No. It's strictly a situation of supply

22 and demand.

23 Q. I'm not sure I understand.

24 A. Well, land becomes available -- you know,

25 when it becomes available. Land is in short supply.

1 So you can't really pick and choose what size farm

2 you want to buy. It's more of a function of supply

3 and demand.

4 What you do is you pick the size pump to go

5 with the size land. You might need one pump, one

6 big pump, one small one, two medium-sized pumps.

7 You have a lot of choices but basically you

8 buy the land and then you pick the pump or pumps to

9 service that land. Every farmer does it different.

10 So you don't really have a rule that you say

11 you use one pump per so many acres. This land may

12 be good dry land, deep mud. This land may be

13 shallow next to a major canal that's wet all the

14 time and so it needs more pumps. It's not simple.

15 It's farming.

16 Q. Does Roth Farms take any measures to

17 minimize water table fluctuations?

18 A. I guess I have a hard time answering that

19 question, because that's not one of the goals to

20 minimize water table fluctuation.

21 So I guess the answer really is: No. I mean,

22 is that a goal that we try to achieve? No, it's

23 not.

24 Q. Do you take any measures to try to

25 maintain a level water table within an area that's

1 serviced by a pump?

2 A. Again, that sounds to me like the same

3 question. I mean, the water is level. I don't know

4 what you -- we -- all we do is try to maintain the

5 system. You know, the ditches -- you know, soil out

6 of the ditches, clean the ditches and on an annual

7 basis repair and replace culverts and risers and do

8 all those kinds of things.

9 So that's not really the answer to your

10 question, but your question is kind of the same

11 question you asked before. That is not the goal to

12 maintain the water level.

13 Q. Do you have problems or the situation with

14 the water level at one end of a field which is

15 closer to the pumping station is lower than the

16 water table at the far end. For instance, if you're

17 trying to get water off the field --

18 A. Right. And that's what I said. What we

19 do is we maintain the system, keep the ditches

20 clean -- you know, repair the culverts to allow the

21 water to flow. I mean, that's what we do and that's

22 what I said.

23 Q. Okay. Do you use mole drains?

24 A. Yes, we do use mole drains subsoil mole

25 drains.

1 Q. Do you have any water table monitors?

2 A. No.

3 Q. Does Roth Farms use banded fertilization?

4 A. Yes.

5 Q. Do you use broadcast fertilization?

6 A. Broadcast becomes very limited. It's a

7 very specific need. It's usually based on -- it's a

8 BM Practice we've been using several years. We do

9 not band -- very rarely do we broadcast fertilizer

10 that contains phosphorus.

11 There are emergency situations where we do

12 broadcast fertilizer, but it's general. It's all my

13 vegetable crops that are banded. All my sugar cane

14 is banded at planting and at subsequent times.

15 Q. Under what circumstances would you use

16 broadcast fertilizer, banded fertilization?

17 A. First case would be where you're not using

18 phosphorus at all and you need a requirement of a

19 fertilizer that you cannot get enough out there in a

20 banded form. So you would broadcast it.

21 I could go into more detail, but it's

22 generally when you needed a fertilizer requirement

23 other than a phosphorus, and, secondly, in emergency

24 situations where for location reasons you may be

25 planting over here and at another farm at the same

1 time; and so you're having to use -- it's just in

2 emergency time type situations you're not able to

3 band in both locations, so you would go ahead and

4 broadcast some fertilizer to make it work. It's

5 just like I say in emergency situations.

6 Q. Does Roth Farms use calibrated soil tests?

7 A. Always have.

8 Q. Since 1949 you've used a calibrated --

9 A. Well, I've been on the farm since 1976 and

10 we've been using them since then. So I mean, before

11 then I don't know how far back we went before 1976.

12 But I know we used them from 1976 on.

13 Q. Does Roth Farms retain any vegetable field

14 drainage for use on other fields?

15 A. Ask that again, please.

16 Q. Does Roth Farms use any vegetable field

17 drainage to route it to other fields for irrigation?

18 A. No, no, no, we haven't.

19 Q. Has Roth Farms changed any of its

20 agricultural practices or water management practices

21 for water quality reasons within the last five

22 years?

23 A. Oh, yes, sure.

24 Q. And what changes has Roth Farms made?

25 A. General kind of like banding fertilizer,

1 banding all the sugar cane -- all the fertilizer for

2 sugar cane is banded. All the vegetables are

3 banded, trying to use less fertilizer, take more

4 risks, sometimes not use fertilizer because the

5 recommendation says don't use any fertilizer, don't

6 use any, although it would be the normal practice to

7 use some, don't use any at all.

8 We've been on a very stringent crop rotation

9 for years. That's one of the things that I believe

10 very strongly in, not only for fertilization reasons

11 but for disease reasons, drainage reasons.

12 So we have been on a very complicated rotation

13 system in order for vegetables and sugar cane to

14 compliment each other very well as agriculture

15 practices to rotate them.

16 So that's what we do. That helps in the use

17 of fertilizer.

18 Q. When did you start using banded

19 fertilization?

20 A. Boy, I can't remember exactly when. I

21 wouldn't know the year exactly. It was sometime --

22 I would say somewhere between. I couldn't even give

23 a guess, between 1985 or 1989, somewhere in that

24 range. I can't really pin it down to when we

25 started going to liquid. It was a number of years

1 ago.

2 Q. Has Roth Farms lost any productivity

3 because of the water quality related agricultural

4 changes you've made?

5 A. It's hard to be -- it's hard to pin it

6 down. I think there has been some instances where

7 we have lost productivity due to when you band

8 fertilizer if you have problems, you have areas that

9 didn't get any fertilizer at all; whereas, you

10 broadcast the whole field and if he runs out or

11 breaks down, he goes and gets some more and finishes

12 the job.

13 And it's very visual and you're able to see

14 that you got the whole field; whereas, in a banding

15 you're putting the fertilizer down under the soil as

16 you plant, so there are times when you have crop

17 loss, because it plugged up and clogged and all

18 that. I also believe that when you use banded

19 fertilizer, you are using less. So there are times

20 with large rainfall events that you do lose

21 productivity because the fertilizer gets washed

22 away.

23 Q. Are there any cost savings when you use

24 banded fertilization?

25 A. There are some cost savings but that's

1 probably the worst place to try to save money is on

2 fertilizer in terms of productivity and

3 profitability.

4 Q. Why is that?

5 A. It's kind of like being penny-wise and

6 pound foolish. It's kind of like saving money on

7 the cost of running a car by buying the cheapest

8 tires you can find. It's not just very smart.

9 You're better off with finding other ways.

10 Maybe buy your gas a little cheaper, but you don't

11 buy the cheapest tires. You might find yourself

12 having a blowout.

13 The same type of situation with fertilizer you

14 want. Farming is an inexact scientist. You have

15 unknown weather events coming. If you knew what the

16 weather was going to be, you could maybe try to cut

17 the margins a little closer. So when you save money

18 on fertilizer you may be risking the crop. It's

19 kind of saving money on seed. You don't -- saving

20 money on buying cheaper seed is pretty stupid too.

21 Q. Has Roth Farms ever lost a crop due to

22 flooding?

23 A. Let me count the ways. That's a pretty

24 typical occurrence. The danger that you have

25 farming in the EAA is not from lack of water. It's

1 from having too much water, from flooding. The soil

2 is very absorbent. It holds water very well.

3 If you have a large rainfall event and then

4 warm weather afterwards, it's sometimes physically

5 impossible to get the water off soon enough to

6 prevent crop flooding or drowning.

7 So it's a pretty normal occurrence. We've

8 had -- I could give you enormous cases, but it's

9 pretty much a normal situation and that's on

10 flooding.

11 Q. And how often would that happen? At least

12 once a year or --

13 A. Oh, yeah. Well, how many times in the

14 last two months would you like to -- I mean, we've

15 had a lot of rain in October. Yeah, it happens on

16 an annual basis. Some years are dryer than others.

17 Obviously in those dry years you don't have

18 much at all. 1991 you had a large event. So it's

19 pretty much an annual crop, sure.

20 Q. Has Roth Farms ever had a crop completely

21 destroyed because of flooding?

22 A. Yes. But -- you know, what's the

23 definition of crop? If you're saying a crop,

24 meaning I have a crop in this field and was it

25 completely ruined by flooding -- I mean, the answer

1 is yes. That particular field, that particular

2 crop, yes.

3 Like I said, it happens all the time.

4 Vegetables can't stand a lot of a water. It's

5 usually less than 24 hours that they can stand to be

6 in any kind of wet condition. They have to be --

7 Q. Has Roth Farms ever lost a crop due to

8 drought?

9 A. No, not in the traditional sense. Only in

10 a situation where you have any problems where you

11 were trying to plant and due it to being too dry you

12 can't; and you disc the crop up and you planted it

13 again and then, of course, you took some extra

14 measures to increase soil moisture. So once the

15 crop is established, the answer is no.

16 Q. Have you read the Everglades SWIM Plan

17 that the South Florida Water Management District

18 approved in March of 1992?

19 A. I've read pieces of it. Bits and pieces.

20 Not the whole thing.

21 Q. Have you read any of the prior drafts of

22 the Everglades SWIM Plan?

23 A. I've tried to keep up with it. It's been

24 an ongoing process for a number of years.

25 Q. There's been a lot of drafts, I guess?

1 A. Yeah, a lot of drafts.

2 Q. Has Roth Farms ever submitted any comments

3 to the Water Management District on any of the

4 addressed SWIM plans?

5 A. Yes, I have.

6 Q. Do you recall when you submitted comments?

7 A. Numerous occasions.

8 Q. Have they been written comments?

9 A. Generally not. Generally been verbal,

10 public hearing type comments.

11 Q. Do you recall ever providing written

12 comments on the written SWIM Plan draft?

13 A. It's funny. I can't recall that I have.

14 I don't think I have. I think it's all been written

15 down and then given verbally.

16 Q. Has anyone else ever submitted any written

17 comments on behalf of Roth Farms on any SWIM Plan

18 draft?

19 A. No, not specifically. No, I never hired

20 anybody to do it. I never asked anybody to do it on

21 my behalf, no.

22 Q. Do you recall what oral comments you've

23 made on SWIM Plan drafts?

24 A. Not specifically. It's always been of a

25 general nature trying to explain the problems, try

1 to explain -- you know, from a farmer's prospective

2 what kind of problems that we have farming and what

3 kind of future problems we would have with proposals

4 being -- you know, discussed.

5 Q. And what kind of problems have you

6 mentioned when you've made comments?

7 A. It's kind of hard to say without --

8 Q. If you can recall.

9 A. It's just been of the general nature --

10 general -- it's just been generally in support of

11 the farming in the Everglades Agricultural Area and

12 in support of the practices that we use in order to

13 farm as it relates to the overall scheme of things.

14 Just general comments.

15 Q. By the way, I don't think we'll be here

16 very long today but if you want to get up and take a

17 break, just let me know.

18 A. Okay. How do you define not very long?

19 MR. WARD: If you want a break now or

20 anytime.

21 THE WITNESS: No, I'm fine.

22 MR. WARD: Just let us know.

23 BY MR. GARVER:

24 Q. Do you recall ever making comments to the

25 effect that the SWIM Plan was slanted towards the

1 environment?

2 A. No. I guess I don't think I've said it

3 exactly like that.

4 Q. Do you recall ever making comments to the

5 effect that any water quality problems in the water

6 conservation areas are not as significant as jobs in

7 the Everglades Agricultural Area?

8 A. No, I wouldn't say it like that, no.

9 Q. Do you ever recall making comments that

10 there is no urgent water quality problem in the

11 Water Conservation Areas?

12 A. I'm sure I've made some comments to that

13 effect, that it's not -- that the -- I have made

14 specific comments representing the farm bureau; that

15 they need to finish this Everglades Nutrient Project

16 which they call the Knight Property.

17 It's been our longstanding policy that they

18 need to finish that project and get it up and

19 running and see what they can do with that project

20 before going any further with the STAs, because time

21 is not of the essence.

22 That's been a longstanding policy of the local

23 farm bureau and mine, personally, that there is --

24 that we need to find out what we can do and what

25 needs to be done before we implement a policy. We

1 don't need to implement a boss and then figure out

2 how well we're going to be able to do it.

3 Q. What impact do you believe implementation

4 of the Everglades SWIM Plan will have on Roth Farms?

5 A. I guess you first have to say what -- you

6 know, full implementation, worse case scenario --

7 what type of implementation are you talking about?

8 I mean, to me it's still up in the air exactly

9 what's going to be done. I think you -- you know,

10 obviously going to increase -- whatever they do is

11 obviously going to increase the cost of farming.

12 But it's hard to speculate as to how bad it's going

13 to be until you tell me what they're going to do.

14 I mean, what would you like for me to assume?

15 Q. I would like to assume that the SWIM Plan

16 that as it's written is or as it was approved on

17 March 13th.

18 A. Well, refresh my memory. I'm not exactly

19 sure what you're saying -- what that entails, all

20 the STAs being built or 37,000 acres or 35,000 or

21 what. I don't --

22 Q. You said before you've read parts of the

23 Everglades SWIM Plan; is that correct?

24 A. That's correct.

25 Q. Are you familiar with the programs and the

1 plans that are incorporated into the SWIM Plan?

2 A. In a general sense like I said I don't --

3 you first have to make an assumption on what plans

4 are going to be put into place.

5 At this point I don't know that it's really

6 known exactly how much of the current SWIM Plan is

7 actually going to take place.

8 Q. What do you believe is the process going

9 on right now with respect to implementation of the

10 SWIM Plan?

11 A. I think the SWIM Plan is in a process now

12 where they're trying to determine how much money can

13 be raised or funded from government agencies and

14 whatever other people, people in the district,

15 citizens and in the water district management area,

16 farmers.

17 So all that is being done to try to

18 determine -- and, of course, that will determine how

19 much land they're able to buy and put into Storm

20 Water Treatment Areas. They're trying to decide if

21 storm water treatment areas are viable. I don't

22 think that's been decided yet either, a hundred

23 percent.

24 So if you're assuming worse case scenario,

25 including -- you know, heavy taxation of the

1 citizens of this area and the farmers, you -- you

2 know, I think the impact will be bad. It would be

3 very bad.

4 Like I say, it's kind of hard to say. You've

5 got to tell me a number, how much the taxes are

6 going to go up or whatever. It depends on --

7 Q. What types of impacts are you concerned

8 will happen in the scenario where roughly 35,000

9 acres of Storm Water Treatment Areas are built?

10 A. My first concern is whether or not they

11 will even work. Spend all that money and then not

12 have them work, that's my first concern.

13 The second concern is obviously economic --

14 you know, how much I will be taxed to pay for a

15 project that's -- that may or may not work. Farming

16 is a very risky business. I don't know if I need

17 any more risk.

18 Q. Are you familiar with the terms of the

19 Marjory Stoneman Douglas Act?

20 A. I haven't reviewed it in well over a year.

21 I was very familiar with it at the time that it was

22 passed painfully.

23 Q. Do you recall provisions relating to

24 conditions or requirements that must be met before

25 EAA landowners can be made to pay for Storm Water

1 Treatment Areas?

2 A. I just remember it in a general kind of

3 sense, basically. You have to take in consideration

4 things like hydroperiod and that type of thing.

5 Q. Do you recall any provisions regarding

6 promotions, fees, or taxes that are assessed on a

7 landowner in the EAA to the amount of benefit in

8 terms of improving water quality that is needed from

9 that particular landowner?

10 A. Yeah, I do remember the statement that you

11 said, now that you've said it. Yeah, I do remember

12 it.

13 Q. Do you believe that the aspect of the

14 Marjory Stoneman Douglas Act provides Roth Farms

15 with any protection from impact of the

16 implementation of the Everglades SWIM Plan?

17 A. Yes, I think there is some protection in

18 there. It's very -- it's subjective as to on my

19 part as to how much, but I think there is some

20 protection in there, if the law is more conservative

21 than the settlement.

22 Q. What makes you believe that the STAs may

23 not be viable?

24 A. Several. There's many, many reasons.

25 Most important one is -- I think you have to balance

1 the need -- water quantity needs of South Florida

2 against the quality considerations that you're

3 looking for and determine whether or not the

4 relative quality of the water is such that it

5 warrants those kind of massive expenditures when

6 they could actually negatively impact the quantity

7 of water that South Florida has.

8 I think we're well aware in this area that we

9 have been through several droughts within the last

10 25 years and that we can go through severe drought

11 periods; and that's my major concern is that you

12 actually lose -- it will have a negative impact on

13 water quantity without having the measurement impact

14 on water quality.

15 Q. And what makes you believe that the STAs

16 may not work?

17 A. Well, some of what I read is speculative

18 as to how much land you're going to need to do it.

19 Agricultural basing it on the land and what has

20 been -- if you're taking agricultural land and

21 converting it to STA -- you know, you have to come

22 into question how much fertilizer is already in the

23 land and you're asking that land to absorb nutrients

24 that's already been fertilized.

25 So I mean, I don't think you can make a direct

1 comparison using tilled land to water conservation

2 area land.

3 Q. Were you involved in a study conducted by

4 the University of Florida IFAS program regarding the

5 effects of on farm agricultural practices in the

6 organic soils of the EAA on nitrogen and phosphorus

7 transport?

8 A. They have done some of those studies on my

9 farm. I don't know if that's exactly the name of

10 the report, but there has been research done by

11 scientists at the Everglades Research and Education

12 Center in Belle Glade on my farm, yes.

13 Q. How did your farm get involved in that

14 study?

15 A. Very straight forward. They were looking

16 for a different -- they were looking to do tests on

17 different farms with different crop rotations and I

18 grow vegetables and rice; and so they were looking

19 for vegetable-rice rotation.

20 So I was -- there really aren't that many.

21 There's only a handful of rice growers and only a

22 few of those grow vegetables. So I mean, on a large

23 basis or on a high percentage of their land basis, I

24 guess I was a good choice.

25 Q. What did you understand the objective of

1 that study to be?

2 A. I think to document the effects of crop

3 rotation, vegetables with rice, whether as to what

4 was actually happening to the phosphorus, where it

5 was going, if it was being transported out to the

6 water, if it was staying in the soil.

7 You see, in your document it has you from

8 vegetable and rice rotation and then back to

9 vegetables again.

10 Q. The executive summary of the IFAS Report

11 on that study states the primary objective of the

12 report is to develop and screen potential Best

13 Management Practices to alleviate nitrogen and

14 phosphorus loading of the EAA Canal System.

15 Do you agree that that was an objective of

16 this study?

17 A. I guess it says that's the objective, so I

18 guess it is.

19 Q. Are you familiar with any of the results

20 of the portion of the study that your farm was

21 involved in using rice fields and vegetable fields

22 together?

23 A. To tell you the truth, I'm really not that

24 familiar. When they gave me the document it was

25 only about that thick (indicating), so I only

1 lightly perused it. I really didn't get into the

2 meat of it at all. I felt like at that point it

3 didn't really have an impact on the way I farmed.

4 Q. Do you recall any conclusions regarding

5 whether growing rice crops on a vegetable field was

6 successful in cleansing the soil in the vegetable

7 field?

8 A. No, I really can't. Like I said, I really

9 didn't look to that report for -- to my way of

10 thinking, it was kind of an interim study. I

11 understand -- you know, basically what takes place

12 in that rotation system as we rotate from one crop

13 to another. Really, I don't recall what the

14 conclusions were of the report.

15 Q. What do you understand takes place in that

16 rotation?

17 A. Is that we use the fertilizer that's left

18 over to the vegetable crop to grow a rice crop

19 without having to add any additional fertilizer,

20 because the fertilizer is already there and then

21 following the rice crop, the fertility level will be

22 significantly lower when you go back to a vegetable

23 rotation; therefore, tilling the land has gone down

24 significantly.

25 Q. And then you have to refertilize the land?

1 A. Refertilize, right.

2 Q. Do you recall a study that the South

3 Florida Water Management District either proposed or

4 carried out around 1986 to determine response time

5 to rainfall events?

6 A. No, no.

7 Q. Has Roth Farms applied for a permit under

8 the new rule that you mentioned earlier, 40E-63?

9 A. Yes.

10 MR. GARVER: I'm going to ask the

11 court reporter to mark this as Exhibit Roth 1.

12 (Whereupon, a composite document was

13 marked as Exhibit Roth 1 for

14 Identification.)

15 MR. GARVER: You want to take a break

16 now?

17 (Thereupon a break was taken.)

18 BY MR. GARVER:

19 Q. All right. Mr. Roth, I'm handing you

20 what's been marked as Roth Exhibit 1.

21 Do you recognize this document?

22 A. It looks like the Application for a Works

23 of the District Master Permit.

24 Q. And that's the permit under Rule 40E-63;

25 is that correct?

1 A. Yes, sir.

2 Q. On the front of this application there

3 are -- it states that the application was prepared

4 for Roth Farms, Inc., and then five other entities,

5 Gladeview Farm, Shiver --

6 A. Shiver.

7 Q. Old Shiver Farm, Burke Farm, and 20 Mile

8 Bend Farm.

9 What are those farms there other than Roth

10 Farms, Inc.?

11 A. Those are tracts of land that we farm.

12 Q. Are those tracts of land?

13 A. That's an actual farm location name.

14 Gladeview Farm is that actual physical tract of

15 land. That's the name for a certain tract of land

16 that we farm.

17 Q. Okay. Is your permit application made in

18 conjunction with any other farm corporations?

19 A. No. It might be more appropriate in this

20 document to put a colon after incorporated and then

21 it would be Roth Farms, Incorporated, and then these

22 are the physical locations of Roth Farms. I mean,

23 that makes it easier for you to see and understand.

24 Q. I just want to ask you a few questions

25 about this application.

1 A. Sure.

2 Q. On Page 5 of -- not these initial forms

3 but once the application actually starts.

4 A. I go from 2 to 7.

5 Are you talking about -- well, here's aerial

6 photographs.

7 Q. Let's start on the page after aerial

8 photographs. There's a page that says location map.

9 A. Okay.

10 Q. And then there is a map that says Location

11 Map Roth Farms, Inc. Can you find that?

12 A. Um-hum. Yes, I have that in front of me.

13 Q. And there's Roth Farms circled with

14 several arrows pointing to different locations on

15 this map; is that correct?

16 A. That's correct.

17 Q. What are the areas indicated by the arrows

18 on that map?

19 A. We have three farm locations, the one

20 farthest to the right is 20 Mile Bend Farm. As you

21 can see there's two rows that converge there in an

22 area. It's called 20 Mile Bend.

23 The second location is the one that's in the

24 middle of the three which is three sections of land,

25 that's called the Gladeview Farm, sections six,

1 seven, and eight.

2 And then you have the third location on Sam

3 Senter Road and that actually is three tracts of

4 land that have been combined.

5 They are the Old Shiver and the Burke Farm.

6 Actually they were farmed -- they were three

7 separate pieces and they're now being farmed. It's

8 all ours and we're farming it as best we can

9 jointly -- I mean, as one piece. But it is actually

10 three pieces and have three permits.

11 Q. Are these three locations on this map, do

12 those comprise all the land that Roth Farms has in

13 the EAA?

14 A. No, it does not.

15 Q. Where is the other land that Roth Farms

16 has located --

17 A. We have some land in the Shawano Drainage

18 District, which Shawano is getting their own master

19 permit as a whole district.

20 So I'm not getting a permit for my land inside

21 that district, because it's going to be permitted as

22 a whole district which is what it has been in the

23 past, because we have a pump structure. So,

24 therefore, that pump structure is the permitted

25 structure.

1 Q. Where is the Shawano District?

2 A. Generally speaking, it's between -- it's

3 in this area here, bounded by the Bolles Canal on

4 the north. Hillsboro Canal is on the east and the

5 L-19 -- what do they call it. Is that the Miami

6 Canal on the west -- so it's in this general area

7 here.

8 Do you see where my finger is?

9 Q. Oh, okay?

10 A. I guess that S-6 Basin.

11 Q. Near where -- roughly where it says 45-36,

12 38 and 37?

13 A. Yes, it's general in that area. I'm

14 trying to find the exact location on this map.

15 Yeah, it's right in this area.

16 Q. We don't have to worry about the details.

17 Is that all the land --

18 A. I also have --

19 Q. -- that you farm?

20 A. I also have another piece of land which is

21 up here to Pahokee which is also in a different

22 drainage that's going to get its own permit. I

23 think its called -- East Shore, I think is the

24 drainage district.

25 Q. Are there any other parcels of land that

1 Roth Farms farms?

2 A. That's it.

3 Q. Now, continuing in the application, if we

4 keep going turning pages you'll come to Page 5

5 eventually.

6 A. Okay.

7 Q. It states on Page 5 near the top --

8 A. BMP Number 6 listed in 40E-63 will not be

9 utilized for the following reasons: BMP will

10 require infrastructure requirements that are not

11 being applicable at this time.

12 Q. Do you recall what BMP Number 6 is?

13 A. Right off the top of my head, no, I do

14 not.

15 Q. Do you recall what infrastructure

16 improvements are being referred to in that

17 statement?

18 A. No, you would have to tell me what BMP

19 Number 6.

20 Q. Also on Page 5 there's a list of BMPs and

21 then a list of dates and all of those dates are 1988

22 except for one which is 1992?

23 A. Um-hum.

24 Q. What does the dates there in those columns

25 refer to?

1 A. The date of implementation.

2 Q. Am I correct in assuming then that the

3 BMPs that correspond to those dates were implemented

4 in 1988 at Roth Farms?

5 A. Well, some of them were implemented before

6 1988. It is just all of them were implemented by

7 1988. So some of them were implemented earlier.

8 Q. Were they-all fully implemented by 1988?

9 A. Well, like one, for example, the only one

10 that was not fully implemented would be banding of

11 fertilizer, because we were in the process of

12 converting equipment and practices and learning how

13 to do it.

14 So we were -- we had implemented a banding for

15 our vegetable crops. For example, it had not fully

16 implemented it because it takes a time period

17 between the time you start something and you have

18 full knowledge or enough knowledge to feel

19 comfortable to do it widespread.

20 So it was at that time that we started

21 implementing banding in that period and then

22 obviously -- you know, it wasn't. You just don't go

23 from zero to full banding. You have to go through a

24 learning curve.

25 Q. Okay. Have you observed or noticed any

1 water quality results due to implementation of the

2 BMPs listed on Page 5?

3 A. No, I have no way to determine the water

4 quality.

5 Q. But now you're putting in water monitoring

6 systems, right? Is that correct?

7 A. Um-hum. That's right.

8 Q. On Page 6 the application states that the

9 applicant, Roth Farms, Inc., claims an

10 impracticality for drainage volume reductions.

11 Do you understand what that statement means?

12 A. Um-hum, yes, I understand.

13 Q. Can you explain it, please.

14 A. Roth Farms grows many different crops. We

15 grow vegetables and sugar cane on all farm

16 locations. We attempt to by growing sugar cane and

17 vegetables at all locations as part of our

18 rotation -- crop rotation pattern, we think it will

19 also be beneficial and may be able to reduce our

20 drainage by retaining water on sugar cane land and

21 only draining those fields that need to be drained;

22 because they have vegetables on them.

23 But the fact we do grow vegetables on all farm

24 locations makes it or are usually grown on all

25 locations or the crop mix reason, it makes it

1 difficult to say that we can actually reduce our

2 drainage problem.

3 That is a function of the crop and the amount

4 of rainfall. So to say that we can do it would

5 be -- you know, would be a hopeful statement rather

6 than a guaranteed type of statement. So we can't

7 say it.

8 Q. So is it correct then at this point Roth

9 Farms does not anticipate a significant reduction in

10 the quality of drainage from these farms?

11 A. I think we anticipate some reduction.

12 It's hard to say that we can reduce it to a certain

13 percent. It's just -- you know, it's hard to say.

14 Q. There are, also referenced on Page 6,

15 seepage problems relating to Water Conservation

16 Area 1 and various canals; is that correct?

17 A. Excuse me. Ask me --

18 Q. There are, also referenced on Page 6,

19 seepage problems relating to Water Conservation

20 Area 1 and various canals; is that correct?

21 A. That's correct.

22 Q. Can you describe those seepage problems.

23 A. As I stated to you before, the soil is

24 very absorbent and it retains moisture. Vegetables

25 do not like a lot of water and we -- the way you

1 farm is you are maintaining the water table at a

2 certain depth below ground level in order to keep

3 the roots of the vegetables dry.

4 And in that particular area, the 20 Mile Bend

5 area, you have three sides of that farm that have

6 major canals and one of them -- one of those three

7 sides is actually the Water Conservation Area and

8 obviously there's water in most of the year.

9 There's water in that Water Conservation Area

10 and that water will be at a higher level in that

11 conservation area than will be the level of the

12 water on my farm. Because my farm level is below --

13 the water is below ground level.

14 So what you have is pressure. You have water

15 actually moving laterally from a high water table to

16 a low water table. It's called osmosis. So it's

17 just a natural occurrence that will continue. There

18 are canals that interrupt that flow.

19 But what you do is you -- it still has an

20 impact because the water goes underneath the ground

21 and seeps. So what you have to do is you have to

22 pump. There's been periods of time where we haven't

23 had rain for two months and I still have to pump

24 because I'm getting seepage water.

25 Q. Do you have to put extra pumps along those

1 areas in order to handle that?

2 A. No, what you do is you have in that

3 location one main pump. Well, actually we did have

4 two pumps. We have two permitted pumps on that

5 farm.

6 One of them is strictly a seepage pump that's

7 for the seepage that comes under State Road 80 which

8 is on the northwest corner of the farm and -- but we

9 have one main pump and we have to run that pump more

10 often just to pull the water all the way from the

11 area it's seeping, bring it all the way to the pump.

12 Q. Does your monitoring program involve

13 monitoring any of the seepage water that's coming

14 in?

15 A. No. It's just strictly discharge or will

16 be discharge.

17 Q. Did Roth Farms opt to do the Early

18 Baseline Option for this permit?

19 A. Yes, we did.

20 Q. What is your understanding of how the

21 Early Baseline Option works?

22 A. Basically the Early Baseline requires

23 monitoring sooner than the regular program; and the

24 goal is to demonstrate a reduction, a percentage

25 reduction. I think it's 25 percent; but it's a

1 percentage of phosphorus being discharged from the

2 farm.

3 The first year will be the base year which you

4 are still maintaining normal practices and then

5 after the base year you go into the BMP year, where

6 you will be actually implementing the BMPs and

7 pumping -- trying to pump less, do other things, try

8 to reduce the load that you discharge.

9 And if you demonstrate that you have reduced

10 that percentage, then you are deemed to be in

11 compliance.

12 Q. Why did you choose the Early Baseline

13 Option?

14 A. It's not a simple answer. It's a very

15 complicated answer. But I guess, basically, the

16 main reason is that we have implemented BMPs prior

17 to this rule; and we feel that we should get credit

18 for those practices that we have already

19 implemented.

20 We have already reduced the level of

21 fertilizer on our land through banding and other

22 rotation methods and growing of rice and other

23 things. And so we feel that we should get credit

24 and we think we're already in compliance and the

25 Early Baseline is the way to get credit for that.

1 Q. In order to determine your baseline, you

2 won't have to actually stop using the BMPs you have

3 in place already, will you?

4 A. No, of course not. But what we're going

5 to try to do is obviously improve -- further improve

6 the BMPs, start implementing more careful monitoring

7 of the discharge water levels in the canals staffed

8 by -- putting staff gauges and doing things in order

9 to minimize the discharge as much as possible.

10 Q. Are there any other changes you'll be

11 making in conjunction with your application and

12 implementation of the BMP permit?

13 A. Just, basically, I remember the refinement

14 of the practices we're already using, trying to

15 improve on them, improve the handling of the water,

16 improve the -- as we learn more about the fertility

17 and the requirement of the crops, finding the

18 minimum requirement needed, we'll further implement.

19 In other words, use less -- trying to use less

20 fertilizer that we can and see what we can do to

21 improve on that, which is basically, like I say, we

22 feel basically with the things we've done, we

23 already feel we are in compliance.

24 Q. Going back to a question I was asking you

25 earlier about BMP Number 6. In the similar plan,

1 the 6 BMP is a retention of vegetable field drainage

2 water for use in sugar cane or fallow fields.

3 Does that sound familiar to you as BMP 6?

4 A. I've heard of it, yeah.

5 Q. Are there infrastructure improvements

6 related to that BMP that are not applicable to your

7 farms?

8 A. We feel like we have not decided -- you

9 know, what further improvements we need to better

10 manage our water, where those structures would be

11 and if they're necessary, if they're cost effective,

12 with the rotation of crops and such. It's not like

13 you have one farm that's vegetables and one farm is

14 sugar cane.

15 They-all continually rotate and move around.

16 What we're saying at this time is we don't think --

17 we don't have enough information and we don't think

18 it's cost effective to try to put additional

19 structures. We feel that we have good control of

20 our water at this time.

21 Q. You're just holding off on that BMP for

22 the time being, is that correct, to see whether the

23 BMPs you're using are successful?

24 A. That's correct. We feel like we're going

25 to be in compliance with the things we're already

1 doing.

2 Q. Okay. Mr. Roth, do you believe that there

3 is a water quality problem in the Everglades?

4 A. What do you define as Everglades? I mean,

5 Everglades National Park or --

6 Q. In any part of the Everglades, including

7 Everglades Park and the Water Conservation and

8 Loxahatchee Wildlife Refuge?

9 A. That's not a simple answer either. I

10 think it's -- it's relative, I think, the quality of

11 the water in Lake Okeechobee and the agricultural

12 area and other areas is acceptable; because it's

13 near the -- it's very near and in the overall scheme

14 of things, it's very near the quality of rainfall;

15 and, therefore, everything needs to be done that can

16 be done to mitigate or reduce -- you know, just like

17 it says in the Marjory Stoneman Douglas Act,

18 whatever is practical as far as doing things that

19 are outrageous and costs lost over money with

20 little -- with no track record or -- you -- you

21 know, I just feel like quality is not really the

22 major problem.

23 I think as it is mentioned in the Stoneman

24 Douglas Act that a lot of it is hydroperiod and

25 water quantity is as much the problem.

1 Q. What problems do you believe exist with

2 respect to water quantity and hydroperiod?

3 A. Well, hydroperiod in and of itself is by

4 definition -- you know, the delivery of water or

5 removal of water at certain time periods. I know

6 regulating of the level -- the water table for

7 periods of time and that has, I think, a greater

8 impact on wildlife than the amounts of water, when

9 it's delivered, how long it's kept at a certain

10 elevation, how long it's kept too low, or too high

11 has a greater impact on the wildlife than the

12 relative quality of the water that we have that's

13 being delivered down there now.

14 From my understanding the water quality, as it

15 enters the park, has never been in violation of any

16 regulations. It's always been well below the

17 accepted standard. So it does seem like that

18 hydroperiod has a lot bigger impact.

19 Q. Your petition in this proceeding states

20 that: Petitioner support controls of agriculturally

21 produced phosphorus and EAA discharges to the extent

22 environmentally necessary and practicable.

23 Do you agree with that statement?

24 A. Which petition is that.

25 Q. Well, it will probably be easier if I show

1 it to you.

2 Are you familiar with the petition that was

3 filed on your behalf in this proceeding?

4 A. Generally. You know, there's been more

5 than one petition over time.

6 Q. Okay. I'm handing Mr. Roth a copy of the

7 Sugar Cane Growers Cooperative Petition which is

8 already in the record.

9 A. Now, what page are you reading from?

10 Q. On Page 24, Paragraph 30 begins with the

11 statement: Petitioner support controls of

12 agriculturally produced phosphorus in the EAA

13 discharges to the extent environmentally necessary

14 and practicable; and I asked you whether you agreed

15 with that statement.

16 A. Yes, I agree with that statement.

17 Q. What controls of agriculturally produced

18 phosphorus in the EAA discharges do you believe are

19 environmentally necessary and practical?

20 A. I'm not so sure it really matters what I

21 believe. I think the key word there is practicable.

22 I think it's -- I think what this statement is

23 saying and what I believe it says is that what you

24 have to say is that we support doing things to

25 reduce discharges that are practicable, meaning that

1 that allow you to continue to be productive and

2 remain some profitability.

3 In other words, the focus is on doing what

4 makes good common sense and is commonly acceptable

5 or significantly accepted as being a bonefide

6 practice that will -- you know, have economic

7 benefits and also have some environmental benefit.

8 Like I said, the key part is that it be that

9 you could do it and -- you know, the benefits are

10 and you know -- you know what the risks are. So you

11 do it from a common sense standpoint. You say first

12 what -- you find out what you can do and what will

13 work and then you implement that and then you go

14 forward from there.

15 Q. When the governing board approved the SWIM

16 Plan on March 12 of 1992, they added a sentence

17 which stated: It is the governing board's intent to

18 strike a balance between a viable Everglades and

19 sustainable agriculture in the EAA.

20 Do you believe that that was a significant

21 addition to make prior to the final vote on the SWIM

22 Plan?

23 A. Yes, I guess at this point I'm not sure I

24 totally agree that they have done that.

25 Q. In your mind, does that addition to the

1 SWIM Plan address some of your concerns about the

2 practicability of measures taken to protect the

3 Everglades?

4 A. Read the line again to me, please.

5 Q. It is the governing board's intent to

6 strike a balance between a viable Everglades and

7 sustainable agriculture in the EAA.

8 A. I think that statement means different

9 things to different people. To me, it doesn't

10 provide much assurance at all.

11 Q. On Page 4 of the petition near the bottom

12 of the page about the second to the last sentence

13 states --

14 A. What page are you on?

15 Q. I'm sorry, the petition not your permit

16 application.

17 A. I'm sorry. I wasn't paying attention.

18 Near the bottom you said?

19 Q. Yes, the second to the last statement

20 states the BMP component would impose and enforce --

21 A. I'm sorry. I'm on the wrong page.

22 Q. The BMP component would impose and enforce

23 a 25 percent phosphorus reduction requirement and

24 discharges of storm water from individual farms and

25 determine the cost to the farmers and their crops.

1 Do you have a sense having filled out a permit

2 application of what the cost of implementing your

3 BMP permit will be?

4 A. No, I really don't. I think to address

5 the question, I think the reason it's hard to

6 determine is because people's definition of BMPs and

7 how they work are different. In a traditional sense

8 a BMP, meaning Best Management Practice, would

9 entail doing those things which increase

10 productivity -- in other words, better management in

11 order to -- the goal being productivity would

12 increase your productivity.

13 A lot of these Best Management Practices are

14 of that type, but ones that try to control discharge

15 to reduce loading is one that's going to have a

16 negative impact on the productivity; and I think

17 that's where the costs are going to come.

18 I don't think the costs are going to be as

19 much in implementing and doing things, the cost of

20 manpower, buying things, and doing things. Because

21 I feel that every dollar you spent with structure

22 improvements, whether it be culverts or improving

23 your canals or putting in a new pump, those things

24 will increase productivity and be beneficial. The

25 cost is really on the downside due to crop loss,

1 lost productivity.

2 In farming that's the name of the game. The

3 farmer that is the most productive will stay in the

4 business and the one that's the least productive

5 will go out of the business.

6 So I look at this whole process as being

7 similar to other problems we've had in past times,

8 where they've had productivity problems due to

9 weather or varieties of crops that you grew, coming

10 up with better varieties or better ways to grow

11 them.

12 Now, this is kind of a new kind of problem and

13 I think the goal is going to be to try to be able to

14 maintain productivity in a different environment.

15 Q. On Page 19 of your petition -- actually I

16 think it's better to go ahead to Page 22 and

17 Paragraph O states: There is no adequate scientific

18 basis for assuming that the Best Management

19 Practices envisioned in the proposed EAA Regulatory

20 Program will achieve a 25 percent basin-wide and

21 farm level reduction in phosphorus loadings.

22 Do you agree with that statement?

23 A. Yes.

24 Q. Why do you agree with that statement?

25 A. Again, it's a very complex area.

1 Basically, what it's saying is there hasn't been

2 enough time. You have to implement some of these

3 Best Management Practices, and there's just been

4 very little experiments much less in a basin-wide or

5 whole area practices.

6 Land is not all the same. Farming practices

7 are not all the same. Crops are not all the same,

8 so there are a lot of factors involved. You just

9 can't categorically say we think we can do it.

10 You can say we think we can do it, but, well,

11 that has been to adequate scientifically

12 based -- you know, experimental done for long enough

13 and varied enough and reaching over time periods,

14 different weather conditions and all to be able to

15 demonstrate -- you know, work.

16 That's the very traditional method of

17 achieving any increases or changes in farming

18 practices is that you have to demonstrate first it

19 will work over a period of time before you change

20 your whole farming practice.

21 You don't go and somebody doesn't give a pound

22 of seed and you go out and plant a thousand acres,

23 because it's supposed to be a great new lettuce.

24 You have to plant one acre a week or one acre a

25 month for a couple of years before you throw away

1 the old seed and go with this.

2 You just can't do it. You have to demonstrate

3 it. You know, you've got laboratory conditions that

4 says things will work. You've got textbooks.

5 You've got all of this kind of empirical -- not

6 empirical but hypothetical information that should

7 work.

8 But until you actually demonstrate it will

9 work over a long period of time and different types

10 of growing conditions and different type of

11 agricultural practices, you don't know that it will

12 work; and it's completely backwards to say that you

13 will do this before you even know that it will work.

14 First, what you're supposed to do is find out

15 if it will work and then say, yeah, that's what you

16 will do. That's the traditional way that science

17 and farming works together.

18 Q. There have been some experiments done with

19 respect to the Best Management Practices being used

20 in conjunction with this regulatory program, haven't

21 there?

22 A. Yes, there have been some but you're

23 talking about very limited and there is hope. I

24 think everybody is hopeful. But there is a big

25 difference between hope and guaranteed.

1 The law says guaranteed and if it doesn't --

2 if you don't achieve it, we'll do more. That's the

3 whole problem with the settlement versus the law.

4 The law says what's practical. The settlement says

5 you'll do more. There's a big difference. Big

6 difference in philosophy.

7 MR. GARVER: Let me just take a

8 second here. I'm going to go through my notes and

9 see if there are any additional questions.

10 (Thereupon a break was taken.)

11 BY MR. GARVER:

12 Q. Just a few more questions.

13 Mr. Roth, who prepared your BMP permit

14 application for you?

15 A. Hutcheon Engineers.

16 Q. Do you recall any of the specific

17 individuals with Hutcheons that worked on your

18 permit?

19 A. Sure. I worked most directly with Denise

20 Box and her immediate boss, Bob Howell.

21 Q. Howell?

22 A. Howell.

23 Q. And have you ever visited the Water

24 Conservation Areas or Everglades National Park?

25 A. I've visited Water Conservation Areas.

1 Q. What parts of the Water Conservation Areas

2 have you gone to?

3 A. Just the parameter of the Water

4 Conservation Area 1. There's a canal that goes --

5 Q. Have you ever been in Water Conservation

6 Area 2A?

7 A. No.

8 Q. Have you ever been in areas with dense

9 cattail stands in the Everglades?

10 A. No.

11 Q. Have you been to Everglades National Park?

12 A. No, never have. I would like to. I've

13 told several people the next time they have a tour,

14 I would sure like to go. I'm not important enough,

15 I guess.

16 Q. Did you attend any of the South Florida

17 Water Management District workshops held prior to

18 approval of the settlement agreement in the summer

19 of 1991?

20 A. It's hard to say. I have attended a few

21 workshops, not that many. Maybe half a dozen over

22 the last couple of years. It's mostly been board

23 meetings or a workshop that was in the auditorium

24 where they do have the board meetings. And there's

25 been a couple of occasions where they've had

1 meetings up in the second floor or the blue room. I

2 don't know, whatever room it is.

3 Q. Do you recall attending any meetings or

4 workshops with the board assembled in the auditorium

5 after announcement of a settlement agreement but

6 prior to approval by the board of the settlement

7 agreement?

8 A. It's hard to say. I really -- you know,

9 it's hard to say. I really can't say it

10 specifically.

11 Maybe if you ask me some specific questions

12 about something specific I can tell you. But I

13 don't remember exactly.

14 Q. Do you recall being at any meetings in

15 that time period before the board approved the

16 settlement agreement in which panels of scientists

17 involved in the settlement process were available to

18 answer questions that board members might have?

19 A. Was that a specific committee or something

20 you're referring to, for example, or just scientists

21 representing both sides. I don't remember anything

22 specifically to that.

23 Q. You don't recall that kind of panel?

24 A. No, I really don't.

25 Q. Were you at the board workshop prior to

1 the board's vote on approval of the SWIM Plan in

2 March?

3 A. It's hard for me to say exactly because I

4 did attend a lot of the board meetings, a lot of

5 those workshops just prior to that. Generally, I

6 would say I probably did, but you would have to be

7 specific about what you --

8 Q. I don't know how much more specific. The

9 workshop would have been on, I believe, March 11th

10 or 12th and comments would have been taken from

11 people who wanted to comment prior to the vote on

12 the SWIM Plan.

13 A. I'd have to say I probably did. I

14 attended several of those public meetings where the

15 public was able to comment. That would be the

16 reason to go to make the comments and make my own

17 comments.

18 MR. GARVER: Okay. Well, I have no

19 further questions at this time.

20 I am under some restrictions by

21 various court orders on certain areas that I can go

22 into and, well, I don't necessarily anticipate it

23 should, should some of those areas open up, there is

24 a possibility that we would try to take your

25 deposition just to do some brief follow-up on some

1 of those additional areas.

2 But for the time being, I have no

3 further questions.

4 MR. WARD: I have no questions.

5 MR. RUSSELL: No questions.

6 MR. WARD: He's going to waive.

7 (Thereupon the deposition concluded

8 at 11:40 a.m.)

9 STIPULATION.

10 It is hereby stipulated by and

11 between appearing counsel and the witness that the

12 reading and signing and notice of filing of the

13 foregoing deposition be, and the same are, hereby

14 waived. AND FURTHER DEPONENT SAITH NOT.

††††ㄠവഊ ††††㘱਍਍††††ㄠഷഊ ††††㠱਍਍††††ㄠഹഊ ††††〲਍਍††††㈠റഊ ††††㈲਍਍††††㈠ളഊ ††††㐲਍਍††††㈠വഊഊఊ††††††††††††††††††††††††††††††††㈷਍਍਍

1 CERTIFICATE

2 STATE OF FLORIDA )

3 ) SS

4 COUNTY OF DADE )

5 I, Lance W. Steinbeisser, a Notary

6 Public in and for the State of Florida at Large.

7 DO HEREBY CERTIFY that the foregoing

8 deposition was taken before me at the time and place

9 therein designated; that the deponent was by me duly

10 sworn; and the foregoing pages 1 through 71

11 inclusive, are a true and correct record of the

12 testimony given by the witness.

13 I FURTHER CERTIFY that I am not a

14 relative or employee of any of the parties, nor

15 relative or employee of such attorney or counsel, or

16 financially interested in the foregoing action.

17 WITNESS MY HAND AND SEAL this 25th

18 day of December, 1992, in the City of Miami, County

19 of Dade, State of Florida.

21 __________________________

Notary Public

22 State of Florida at Large

23 My Commission Expires: 11-28-94

24 Commission No. 067218