1
1 Division of Administrative Hearings
2 Department of Administration, State of Florida
3
SUGAR CANE GROWERS COOPERATIVE )
4 of FLORIDA; ROTH FARMS, INC.; and )
WEDGWORTH FARMS, Inc., )
5 Petitioners )
V ) DOAH Case
6 SOUTH FLORIDA WATER MANAGEMENT ) No. 92-3038
DISTRICT, an agency of the State )
7 of Florida; et al., )
Respondents. )
8
FLORIDA SUGAR CANE LEAGUE, INC.; )
9 UNITED STATES SUGAR CORPORATION; )
and NEW HOPE SOUTH, INC., )
10 Petitioners, )
V ) DOAH Case
11 SOUTH FLORIDA WATER MANAGEMENT ) No. 92-3039
DISTRICT, an agency of the State )
12 of Florida; et al., )
Respondents. )
13
FLORIDA FRUIT and VEGETABLE )
14 ASSOCIATION; LEWIS POPE FARMS; )
W. E. SCHLECHTER & SONS, INC., )
15 and HUNDLEY FARMS, INC., )
Petitioners, )
16 V ) DOAH Case
SOUTH FLORIDA WATER MANAGEMENT ) No. 92-3040
17 DISTRICT, an agency of the State )
of Florida; et al., )
18 Respondents. )
19
20 Deposition of Ron Smola
21 Taken before Rachel W. Bridge, Professional
Reporter and Notary Public in and for the State of
22 Florida at large, pursuant to notice of taking
deposition filed by the Petitioners in the above
23 cause.
- - -
24 Thursday, July 1, 1993
319 Clematis Street, Suite 500
25 West Palm Beach, Florida 33401
9:35 a.m. - 12:45 p.m.
2
1 APPEARANCES:
2
On behalf of the Petitioners Florida Sugar
3 Cane League, Inc., United States Sugar Corp.,
and New South Hope, Inc.:
4
Peeples, Earl & Blank, P.A.
5 One Biscayne Tower, Suite 3636
Two South Biscayne Boulevard
6 Miami, Florida 33131
By: JONATHAN L. GAINES, ESQUIRE
7
On behalf of the Respondent SFWMD:
8
SIMMONS & SOLOMON
9 10020 South Federal Highway
Fountain Plaza
10 Port St. Lucie, Florida 34952
By: LYNN D. SOLOMON, ESQUIRE
11
On behalf of the Intervenor, United States of America:
12
Department of Justice
13 155 South Miami Avenue, Suite 627
Miami, Florida 33130-1693
14 BY: ROBERT ROSENBERG, ESQUIRE
15 Also Present: John Patrick Burt
USDA Soil Conservation Service
3
1 - - -
2 I N D E X
3 - - -
4
5 WITNESS: DIRECT CROSS REDIRECT RECROSS
6 Ron Smola
7
By Mr. Gaines 5
8
9 - - -
10 E X H I B I T S
11 - - -
12
13 NUMBER PAGE NO.
14 Smola Exhibit 1 31
Smola Exhibit 2 31
15 Smola Exhibit 3 55
Smola Exhibit 4 55
16 Smola Exhibit 5 59
Smola Exhibit 6 78
17 Smola Exhibit 7 83
Smola Exhibit 8 85
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4
1 P R O C E E D I N G S
2 - - -
3 MR. GAINES: We are on the record now. We
4 are trying to straighten out the witness'
5 disclosure of documents that he intends to rely
6 upon in this matter.
7 And we are talking about the February 19,
8 1993 letter from Maureen Donlan to Joe Richards.
9 And Mr. Rosenberg was telling me that item
10 number two is in error, and I was in the process
11 of correcting that.
12 What is the appropriate document item
13 number two?
14 MR. ROSENBERG: I think the BMP practices
15 for phosphorus loading reductions was produced
16 by Bottcher and Forrest Izuno.
17 The letter here speaks about a Dr. Teofilo
18 Ozuna. I think that's a typo, and I would have
19 that stricken and probably in its place put the
20 Bottcher/Izuno work, which is I think that work
21 of November 29, 1990.
22 MR. GAINES: For the record, Izuno,
23 I-z-u-n-o, and Ozuna are different individuals.
5
1 Thereupon,
2 Ron Smola,
3 being by the undersigned Notary Public first duly
4 sworn, was examined and testified as follows:
5 THE WITNESS: I do.
6 DIRECT (Ron Smola)
7 BY MR. GAINES:
8 Q. Please state your name for the record and
9 your address.
10 A. Ronald D. Smola, 5700 Lake Worth Road,
11 Suite 100, Lake Worth, Florida.
12 Q. Mr. Smola, you have heard us discussing
13 which of these documents is the appropriate document
14 that you are relying upon in this matter.
15 Are you aware of this letter that was
16 provided listing the documents that you will be
17 relying upon?
18 A. This is the first time I have seen this
19 letter, but it's, the document as corrected is
20 appropriate.
21 Q. Okay. With regard to the Izuno and
22 Bottcher study that was conducted, have you seen the
23 final report on that study dated August 30, 1991?
24 A. No, I have not. The only one I had was the
25 report that's in my file.
6
1 Q. All right. Well, we'll get to that. Let's
2 do some preliminary things, first of all, starting
3 with my name is Jonathan Gaines. I represent the
4 Florida Sugar Cane League, United States Sugar
5 Corporation and New Hope South, Inc. in this
6 administrative proceeding, which is a challenge to
7 the South Florida Water Management District SWIM
8 Plan.
9 And you are listed as an expert witness on
10 behalf of the United States in this matter, so we are
11 here to take your deposition, and I will be asking
12 you some questions and hopefully you will be giving
13 me some answers.
14 A. I'll do my best.
15 Q. If you don't understand any of my
16 questions, let me know and I'll try to make it clear.
17 If you need to take a break at any time, let me know
18 that and we can do that.
19 Let me ask you, first of all, have you ever
20 been deposed before?
21 A. No, sir.
22 Q. All right. Well, the simple procedure is
23 that I ask the questions and you answer them and she
24 takes it all down. So the only rule you need to
25 remember is let me finish the question before you
7
1 answer so she can hear clearly who is saying what.
2 A. Okay.
3 Q. By whom are you employed, Mr. Smola?
4 A. US Department of Agriculture Soil
5 Conservation Service.
6 Q. And how long have you been with the Soil
7 Conservation Service?
8 A. About 25 years.
9 Q. And out of what office do you currently
10 work?
11 A. I presently work out of the area office in
12 Lake Worth at the address I gave.
13 Q. What is your job title?
14 A. Area conservationist.
15 Q. How long have you been the area
16 conservationist?
17 A. Fourteen years.
18 Q. What are your duties as area
19 conservationist?
20 A. My duties involve supervising the field
21 staff in 15 counties in South Florida and directing
22 the programs within that 15-county area.
23 Q. Are the 15 counties, is that your area that
24 you are the area conservationist?
25 A. Yes, sir, that's correct.
8
1 Q. Is there only one area conservationist for
2 those 15 counties?
3 A. That's correct.
4 Q. Does each county have a field staff?
5 A. Correct, with the exception of Monroe
6 County, which did not have an office in that county.
7 Q. Why is that?
8 A. We work through the local soil and water
9 conservation districts, and there is no soil and
10 water conservation district in Monroe County, largely
11 because there is a lack of agricultural base, which
12 is the majority of our work.
13 Q. How many staff personnel do you supervise,
14 give or take?
15 A. 34.
16 Q. Could you just give me a general
17 understanding of the function of the Soil
18 Conservation Service within the US Department of
19 Agriculture?
20 A. A general one. Our charge is to provide
21 services to particularly the agricultural community.
22 And we have some legislated programs in USDA SCS that
23 we provide to the farmers in particular and sometimes
24 in the urban areas, but the work that we do
25 particularly in this area is working with landowners
9
1 in the application of best management practices,
2 primarily relative to water conservation, as a rule.
3 And we also are the agency within USDA that
4 does a soil survey. We have in fact completed all
5 the soil surveys for each county in my area.
6 Q. How often is a soil survey done for each
7 county?
8 A. Usually once, and is a very detailed one,
9 and we are presently going through what we call an
10 update of the soil surveys, and it's being done on a --
11 it does it on a much less detailed approach than we
12 did the first one, in the updates.
13 Q. Does the soil survey, is that intended to
14 depict the soil types covering each county?
15 A. Correct, yes.
16 Q. And those are by the taxonomic
17 classifications?
18 A. That's correct, uh huh.
19 Q. Does the soil survey also get into soil
20 thickness?
21 A. Yes, it does.
22 Q. How is that done?
23 A. Actual soil borings. The soil survey is
24 conducted to a depth of 80 inches through actual
25 boring into the soil.
10
1 Q. Can you give me a brief synopsis of your
2 educational and professional background up through
3 the present time?
4 A. Educaional, I graduated from Oklahoma State
5 University with a BS in agronomy in 1969.
6 I started to work for the Soil Conservation
7 Service actually as a summer trainee in the summer of
8 '68 and went full time in the summer of '69 in the
9 Soil Conservation Service in Oklahoma.
10 I served in seven positions in different
11 locations in Oklahoma with the Soil Conservation
12 Service before coming to Florida in 1976 as charge of
13 Hillsborough County at that time, and then moved over
14 to the Lake Worth area where their area office is in
15 1979, and I have been here since.
16 Q. What year did you become the area
17 conservationist?
18 A. 1979.
19 Q. And in that position who would be your
20 immediate supervisor?
21 A. Immediate supervisor is Niles Glasgow, who
22 is our state conservationist located in Gainesville.
23 Q. And who would be Mr. Glasgow's supervisor?
24 A. Our acting chief in Washington is Galen
25 Bridge.
11
1 Q. He is the acting chief of the SCS?
2 A. Correct.
3 Q. Can you explain for me what the term
4 conservationist refers to in your title?
5 A. Conservationist refers to the work that we
6 do relative to conserving natural resources, is the
7 bottom line.
8 Q. Does the Soil Conservation Service have a,
9 like a mission statement or a description of what the
10 specific intended function is of the SCS that you are
11 aware of?
12 A. We have a new mission statement we came out
13 with recently, and I can't quote that to you without
14 looking it up, but our mission is a wise use of the
15 natural resources within their limitations.
16 Q. Now in connection with your duties, have
17 you had occasion to become involved was Best
18 Management Practices in the Everglades Agricultural
19 Area?
20 A. Yes, we have.
21 Q. What role have you played in the
22 development or implementation of BMPs in the EAA?
23 A. Through our technical staff, field office
24 staff in Palm Beach County, I have worked with them
25 or overseen activities in the staff in working with
12
1 the growers and recommending applying BMPs.
2 Q. I think you stated earlier that the Soil
3 Conservation Service works with landowners with
4 regard to BMPs in a wide area, but that they are
5 primarily water conservation BMPs?
6 A. As a rule, that's -- I would say water
7 conservation, because based on -- Soil Conservation
8 Service by title is typically known as soil erosion
9 type work, whereas in South Florida we have limited
10 erosion. We are concerned more with the conservation
11 of water.
12 Q. And what is the concern of the EAA BMPs
13 that you have been involved with?
14 A. The --
15 Q. What is the goal of those BMPs?
16 A. To reduce the amount of water used and
17 improve water quality as well in that same process.
18 Q. And when you talk about improving water
19 quality, what specific aspects of water quality?
20 A. Particularly in this case in the EAA is the
21 phosphorus is the particular nutrient that we are
22 concerned with.
23 Q. Are the BMPs that you are familiar with in
24 the EAA directed more toward reducing the amount of
25 water used or more toward improving the water
13
1 quality?
2 A. They are sort of tied together. They are
3 generally, water conservation measures would also
4 have a positive impact on water quality as well.
5 Q. When did you first become involved in the
6 effort to implement BMPs in the EAA?
7 A. Oh, I guess when I came down here as area
8 conservationist as part of the field office
9 activities in Palm Beach County, and through that
10 administrative capacity in working with the growers,
11 through that.
12 Q. So throughout the entire 14 years that you
13 have been --
14 A. Yes, uh huh, correct.
15 Q. Throughout that time has there been an
16 emphasis on water quality concerns and reducing
17 phosphorus in the agricultural runoff?
18 A. No. What really -- back in those early
19 days, that was before I think we were aware of the
20 water quality concerns that we have today. It was
21 more directed to water conservation.
22 And at that point it was related more to
23 the reduction of soil subsidence was probably the key
24 factor we were managing for.
25 Q. When did the phosphorus issue begin to
14
1 emerge as an important issue in the BMPs?
2 A. Probably in my mind about the time that the
3 lawsuit was filed. There was perhaps information
4 before, but I don't remember, but that was when we
5 became intimately involved and knowledgeable of the
6 concerns.
7 Q. When you say the lawsuit, you are referring
8 to the lawsuit brought by the United States against
9 the Water Management District in federal court?
10 A. That's correct.
11 Q. Do you recall when that was?
12 A. '87, I think.
13 Q. Can you tell me, did you play any role in
14 the federal lawsuit?
15 A. Yes, I was involved in the discussions that
16 went on with the lawsuit.
17 Q. Settlement negotiations?
18 A. Yes, settlement negotiations, correct.
19 Q. Were you a witness in that lawsuit?
20 Did you have your deposition taken?
21 A. No. This is the first deposition I have
22 had.
23 Q. What involvement, can you describe what
24 your involvement in the settlement negotiations was?
25 A. Basically I provided to our technical
15
1 expert the general knowledge of the plumbing system,
2 if you may, and general farming practices and
3 cropping systems that are used so that he could take
4 that general information and apply the technical
5 expertise.
6 Q. Who was that technical expert?
7 A. John Burt.
8 Q. Did you attend any of the settlement
9 negotiation meetings involving the other parties in
10 the lawsuit?
11 A. Yes.
12 Q. How many of those did you attend?
13 A. I would have to guess. I don't remember.
14 It was a number of them.
15 Q. Do you think it was more than a dozen?
16 A. It would be about 12, yes, that would be a
17 fair guesstimate.
18 Q. And what was your role at those meetings?
19 A. Basically to provide the general knowledge
20 of the area to John Burt.
21 Q. Did you participate in the discussions
22 themselves with the other parties or did you just
23 confer with Mr. Burt?
24 A. Mainly in the confirming situation. On
25 rare occasion was I actually involved in the actual
16
1 discussions.
2 Q. Were the meetings that you attended limited
3 to the subject matter of the BMPs or were there other
4 settlement issues discussed such as the water
5 quality, the phosphorus concentration limits for the
6 various areas or the outflow limits?
7 A. A number of issues were discussed other
8 than BMPs.
9 Q. Did you participate in any fashion in those
10 discussions of the other issues?
11 A. No. That was beyond my level of expertise.
12 Q. As a result of your attendance at these
13 meetings, were you able to observe the manner in
14 which the non-BMP portions of the settlement
15 agreement were arrived at?
16 And I'll give you an example, because I see
17 you looking confused.
18 A. Yes, I'm not sure what you meant.
19 Q. For example, you are familiar with a 50
20 parts per billion phosphorus concentration limitation
21 on outflows from the EAA?
22 A. Correct, yes.
23 Q. Did you observe how that settlement
24 provision was reached?
25 A. I was there when it was, the process was
17
1 going on, yes, and I was very, it was very
2 informative to me, because it was new technical
3 information as far as I was concerned.
4 Q. Do you know how the 50 parts per billion
5 number was arrived at?
6 A. I couldn't tell you today, no. I don't
7 remember exactly how it was done.
8 Q. Do you recall whether in the context of
9 those conversations anyone argued for a higher or
10 lower number?
11 A. Oh, there was discussions on both sides,
12 yes, both sides of the 50.
13 Q. Was the 50 a number ultimately, was that a
14 compromise number between competing viewpoints?
15 A. It's only a guess on my part, but yes, that
16 was my impression.
17 Q. Are you able to articulate what the
18 competing sides were arguing for and how they arrived
19 at the 50?
20 A. Not very clearly. There was a number of
21 issues on both sides that was discussed, and I don't,
22 to be honest with you, I don't remember that many
23 details about that discussion.
24 Q. Okay. Would the same be true with regard
25 to the inflow concentration limits for Everglades
18
1 National Park and the Loxahatchee Refuge?
2 A. Yes, that was somewhat discussed in the
3 same period.
4 Q. Would you be able to give me a breakdown of
5 how those, what those numbers are and how they were
6 derived?
7 A. No, I couldn't.
8 Q. Are you familiar with what the settlement
9 ultimately provided with regard to BMPs in the EAA,
10 what those provisions are, the implementation of
11 BMPs?
12 A. Say the first part of your question again.
13 I'm not sure I caught it.
14 Q. Are you familiar with what the settlement
15 agreement has to say about BMPs?
16 A. I never have seen the settlement agreement
17 specifically, so no, I couldn't --
18 Q. Was it your understanding that the
19 settlement agreement called for the enactment of BMPs
20 to achieve a particular percentage of reduction in
21 the phosphorus load from the EAA?
22 A. Yes, that's my understanding.
23 Q. Do you recall what that percentage was?
24 A. 25 percent, as I recall.
25 Q. Do you know how that number was determined?
19
1 A. No. I couldn't tell you specifically how
2 it was determined.
3 Q. When you were advising and providing
4 information to Mr. Burt, were you called upon to
5 express an opinion at that time as to what you felt
6 the percentage reduction of phosphorus through BMP
7 implementation could be or should be?
8 MR. ROSENBERG: Object to form.
9 BY MR. GAINES:
10 Q. You may answer the question. That's just
11 between us.
12 A. I'm not sure what's going on sometimes.
13 Recommendations whether the 25 percent was
14 correct, that's your question?
15 Q. Either whether the 25 percent is correct or
16 were you, did you provide them advice as to what an
17 appropriate number or target would be for the BMPs or
18 did you have any input into that?
19 A. I'm not sure how to answer. I'll say it
20 this way.
21 The information I provided in that was
22 related to how the growers generally managed the
23 water. And I think with that information, John and
24 others extrapolated that to come up with the 25
25 percent.
20
1 Q. In other words, you were able to provide
2 him information on what the base condition or the
3 current conditions were so that they would have some
4 feel for what level of improvement could be obtained
5 through implementation of new practices?
6 A. Right, some of the management practices
7 that are used within the system out there.
8 Q. Did you express an opinion as to what the
9 percentage should be or provide input on that
10 decision?
11 A. No, I did not.
12 Q. Did you feel at the time of the settlement
13 that 25 percent was the correct number?
14 A. I wouldn't say it was a correct number. I
15 felt that it was probably achievable in my opinion.
16 Q. At that time did you feel that any higher
17 percentage would be also probably achievable?
18 A. I think probably a range was involved, and
19 I think we talked from, I think 10 to 50 percent was
20 numbers that were expressed that would be possible.
21 So yes, there was a range of numbers in there.
22 Q. Do you know how, within that range the 25
23 percent figure was chosen or why that figure was
24 chosen?
25 A. No. It was a lot of people involved in
21
1 that decision and I wasn't privy to all the
2 discussion and information that was provided in that.
3 Q. We'll go obviously through the details as
4 we go along, but let me just ask you as we sit here
5 today, based on anything that's occurred or that you
6 have seen since that time, do you feel that any
7 different percentage is now probably achievable
8 through the implementation of BMPs?
9 A. Based on experience in the last couple of
10 months, it appears that 25 percent is fairly easy to
11 accomplish in some cases.
12 Q. When I'm talking about the 25 percent, at
13 least in this instance I'm talking about from the
14 entire EAA basin.
15 A. Okay.
16 Q. And I take it from your last answer you are
17 talking about particular farms?
18 A. I was more specific, yes, as to farm
19 situations, which is typically the way that we
20 operate or work with the landowners.
21 Q. What were the experiences in the last
22 couple of months you referred to?
23 A. We had an opportunity to go out and visit a
24 number of the growers at the request of the US
25 Justice Department and were provided field visits
22
1 with the landowners to show what BMPs they were using
2 and some of the practices that was being installed,
3 and also from their discussions and from what they
4 saw as things that worked, the BMPs that worked and
5 their opinions of them.
6 Q. Have you taken a look at any data that
7 these growers have generated indicating how
8 successful the BMPs have been?
9 A. Haven't seen any specific data, no.
10 Q. Is that something that you would be
11 involved in in your role of monitoring data as to how
12 effective the BMPs are?
13 A. I think in the future when we get back to a
14 normal working situation with the growers that my
15 technical staff would certainly want to look at that
16 data and try to evaluate how we can better assist the
17 growers in meeting the limitations of phosphorus.
18 Q. What is it that is currently not normal
19 about the working situation with the growers?
20 A. Well, I think because of the litigation
21 that's ongoing, the growers are less free to work
22 with us, because we work strictly on a voluntary
23 basis.
24 They request our assistance, we provide
25 that assistance to them, and there is a reluctance on
23
1 their part because of the existing situation.
2 Q. You stated a minute ago that 25 percent
3 appeared fairly easy to accomplish in particular
4 instances.
5 Do you feel that that level of phosphorus
6 reduction is fairly easy to accomplish basin-wide?
7 When I say basin-wide, I mean throughout the EAA.
8 A. I would say it appears to be, and we don't
9 have any real hard data to scientifically say that,
10 but it appears that it's going to be achievable.
11 Q. When you say it would be achievable, is
12 there in that any element that would be achievable on
13 a cost effective manner? Are you considering --
14 A. Would be cost effective? I really couldn't
15 tell, I couldn't say that. I don't have the
16 information or the expertise in that area.
17 Q. Have you been involved in any analysis of
18 the cost of implementing BMPs?
19 A. No.
20 Q. Is that something that the SCS does or gets
21 involved in?
22 A. We will be, yes. Once again, hopefully
23 when the litigation is mediated, we want to get into
24 that so we can hopefully assist and meet the needs or
25 meet their demands.
24
1 Q. Do you have any expertise or background in
2 cost of the various types of BMPs, installation of
3 water management BMPs or fertilization BMPs?
4 A. I don't personally have that knowledge, no.
5 We have that and our technical staff can provide
6 that.
7 Q. Have you ever looked at any of that
8 information?
9 A. Over the years, yes, I have.
10 Q. Did you say not for years?
11 A. Over the years I have seen information,
12 yes.
13 Q. Who on the technical staff currently would
14 be the most knowledgeable in that area?
15 A. Probably my district conservationist in
16 Palm Beach County.
17 Q. And who would that be?
18 A. His name is David Legg.
19 Q. L-e-g-g?
20 A. Uh huh, correct.
21 Q. Earlier when the range -- you said the
22 range at the time being discussed was 10 percent to
23 50 percent.
24 Did you feel that the 50 percent was
25 achievable? Let's say if cost wasn't a factor, was
25
1 the 50 percent achievable?
2 A. If cost was not a factor, yes, it probably
3 would be.
4 Q. Okay. Is the marginal cost or the unknown
5 marginal cost what puts the figure somewhere in the
6 mid range of that, middle of the range rather than at
7 the top of the range?
8 MR. ROSENBERG: Objection as to form.
9 THE WITNESS: I'm not -- I really don't
10 know, I don't know that that was the key
11 concern. It was considered, but whether that
12 was the -- I don't recall that that was the
13 major concern for the, or reason for the 25
14 percent.
15 BY MR. GAINES:
16 Q. Do you know what was the major concern?
17 A. No. It was many factors that was involved,
18 some of which I wasn't involved in those discussions.
19 Q. Is there a number higher than 25 percent of
20 phosphorus reduction that you currently feel is --
21 you used the phrase fairly easy to accomplish, you
22 don't necessarily have to make that statement, but
23 that is achievable let's say through the
24 implementation of BMPs in the EAA?
25 A. If you are talking about basin-wide, I
26
1 really wouldn't be able to answer that.
2 I think on-farm in individual situations,
3 sometimes yes, it could be done and probably is being
4 demonstrated today by some of the growers, but
5 basin-wide, that's difficult to say.
6 Q. Let me ask you, there are three documents
7 that have been listed on your witness disclosure.
8 One is the SWIM Plan.
9 I assume that refers to the March 1992 SWIM
10 Plan?
11 A. That's correct.
12 Q. And have you reviewed the SWIM Plan?
13 A. Yes.
14 Q. Did you play any role in providing comments
15 on the SWIM Plan?
16 A. Yes.
17 Q. Did you comment on any sections other than
18 the BMP materials?
19 A. I cannot recall any other sections that I
20 commented on, but there may have been. I just don't
21 remember.
22 Q. Do you know whether any of the comments
23 that you made were ultimately addressed or included
24 in the final SWIM Plan?
25 A. I think most of the, the BMPs that are
27
1 included in the SWIM Plan, which again goes along
2 with Bottcher and Izuno's work, is basically the same
3 BMPs that we over the years have been working with
4 the growers on. It's more intensified perhaps in the
5 SWIM Plan.
6 Q. Did that information get there as a result
7 of your comments?
8 A. I couldn't answer that.
9 Q. When I say made comments, did you receive a
10 draft of the SWIM Plan and mark it up or something
11 along those lines?
12 A. Yes, uh huh.
13 Q. And then what happened to that document
14 after you marked it up?
15 A. I finally got to the last one, I threw all
16 those away. I had a bookcase full of them.
17 Q. Did you send it back to the District or to
18 the Department of Justice or someplace so that your
19 comments could be taken?
20 A. No, they were submitted to the Water
21 Management District in memo form, I guess you would
22 call it.
23 Actually that was done through -- mine went
24 to John, and John was our official respondent on
25 that.
28
1 Q. That's John Burt?
2 A. John Burt, yes, sir.
3 Q. Do you know what form those comments
4 ultimately took as they were transmitted to the
5 District?
6 In other words, did it come from Mr. Burt,
7 from the Department of Agriculture or from the United
8 States Government as an entire unit?
9 A. I believe that they came from Mr. Burt, but
10 I wasn't always in that loop. And they may have come
11 from the Justice. I really don't know what format
12 they went to the District in.
13 Q. Did you see the comments, ultimate comments
14 that were submitted to the District?
15 A. No, not the final ones.
16 Q. Did you see a draft of those?
17 A. All that I saw was those that I submitted
18 to John. I did not see the other.
19 Q. Do you still have a copy of what you
20 submitted to Mr. Burt?
21 A. No, I do not.
22 Q. Do you recall what the substance of your
23 comments was?
24 MR. ROSENBERG: Objection as to form.
29
1 BY MR. GAINES:
2 Q. Do you understand the question?
3 A. Say it again.
4 Q. What were your comments?
5 A. That was relative to the BMPs, which ones,
6 what BMPs should be included in the SWIM Plan.
7 Q. Which BMPs did you indicate should be
8 included?
9 A. I have to look at the SWIM Plan to see
10 what's all in there, but generally the ones that are
11 in there relative to soil testing, banding
12 fertilizer, water control structures, land leveling,
13 those typical kinds of BMPs.
14 Q. Soil testing, water control structures,
15 land leveling, banding?
16 A. Uh huh, banding.
17 Q. Any others that come to mind?
18 A. Mole drains. Did I say land leveling? I
19 think I did.
20 Q. Land leveling.
21 A. That's all that comes to mind right now.
22 Q. Is the phosphorus reduction that is
23 accomplished in the BMPs obtained due to a decrease
24 in the volume of water or a decrease in the
25 phosphorus concentration in the water?
30
1 MR. ROSENBERG: Objection as to form.
2 THE WITNESS: Based on what I read, I'm not
3 an expert in that area by any means, but it can
4 be both.
5 BY MR. GAINES:
6 Q. Do you have an understanding as to which
7 BMPs affect concentration and which ones affect
8 volume?
9 A. In a general sense.
10 Q. Are Bottcher and Izuno, to your knowledge,
11 the most authoritative, the people with the most
12 authoritative knowledge on EAA BMPs?
13 A. They are the ones that have done the most
14 research through the research station of Belle Glade
15 relative to BMPs.
16 Q. Now I believe you stated already at the
17 beginning of the deposition that you had seen a
18 report of theirs dated November 29, 1990 entitled
19 Agricultural Best Management Practices For Phosphorus
20 Loading Reduction in the EAA, which I'm holding here.
21 A. That's correct.
22 Q. Is that the report of theirs that you have
23 seen?
24 A. Yes, sir.
25 MR. GAINES: Let me go ahead and mark that
31
1 as Exhibit 1.
2 I only have one, so I don't have enough
3 copies.
4 MR. ROSENBERG: So you have one for you?
5 MR. GAINES: I have one for me and I have
6 one you guys can fight over.
7 MS. SOLOMON: He can take it.
8 MR. GAINES: Okay, I'm not going to do a
9 lot with this.
10 Let's also mark this as Exhibit 2.
11 (The documents were marked
12 Smola Exb. Nos. 1 and 2.)
13 MR. GAINES: I have also had marked as
14 Exhibit 2 a final report entitled The Effects of
15 On-Farm Agricultural Practices in the Organic
16 Soils of the EAA on Nitrogen and Phosphorus
17 Transport, Screening BMPs for Phosphorus Loading
18 and Concentration Reductions, by Bottcher and
19 Izuno, et al., dated August 30, 1991, and I do
20 have copies of that.
21 BY MR. GAINES:
22 Q. Let me ask you, Mr. Smola, we have marked
23 as Exhibits 1 and 2 two reports from Bottcher and
24 Izuno and their co-authors. Exhibit 1 is dated in
25 1990. Exhibit 2 is 1991.
32
1 Is it correct that you have not seen
2 Exhibit 2 before?
3 A. That's correct, I have not.
4 Q. Other than the trip you made recently out
5 to visit some farms that you talked about earlier,
6 what analysis of the BMP phosphorus reduction issue
7 have you done since the conclusion of the settlement
8 agreement in the federal lawsuit?
9 A. What was that, last July?
10 Q. That was July of 1991.
11 A. Time flies. I have had very little
12 involvement on the issue since that time, so I would
13 basically say none.
14 Q. Have you, for example, read any of the
15 reports by the South Florida Water Management
16 District's consultants, Brown & Caldwell, analyzing
17 BMPs?
18 A. I have not seen that, no. I would like to.
19 I would like to get a copy of this from you, since I
20 don't have an up-to-date one.
21 Q. Have you reviewed the guide book prepared
22 by Bottcher and Izuno in connection with their work
23 for the EPD, their BMP implementation guide book?
24 A. No, sir, I have not seen that either.
25 Q. Before we start diving into any of these
33
1 exhibits, let me just ask if you could give me, when
2 we talk about BMPs, what do you mean by that term?
3 And if you could describe for me what BMPs are
4 available in the EAA for phosphorus reduction
5 purposes.
6 A. You want a --
7 MR. ROSENBERG: Object as to form.
8 MR. GAINES: Because it's compound?
9 MR. ROSENBERG: Yes.
10 MR. GAINES: That's a good objection.
11 BY MR. GAINES:
12 Q. Let's start with the first question. What
13 is your definition of BMPs?
14 A. It's the management or engineering practice
15 that can be applied on the land that would have a
16 beneficial effect on the resource.
17 I might add the agronomic into that, too.
18 Q. And BMPs stands for Best Management
19 Practices?
20 A. Yes, sir.
21 Q. What is the best, what does best refer to?
22 A. Best available.
23 Q. To achieve what?
24 A. Whatever the goal is that is identified.
25 Q. And in terms of implementing BMPs in the
34
1 EAA, in this context what is the goal that has been
2 identified?
3 A. Appears to be phosphorus.
4 Q. Would it be part of the definition of a BMP
5 that it does not have a negative impact on crop
6 yield?
7 A. It could have a negative impact on yield.
8 Q. And would a practice that has a negative
9 impact on yield still be considered a BMP?
10 A. It could, yes.
11 Q. Is there within the concept of a BMP some
12 balance or need to strike a balance between achieving
13 your goal on one hand and still maintaining your
14 ability to farm your crops?
15 A. Indeed. Very much has to be considered.
16 Q. You listed a few of the BMPs a couple of
17 minutes ago, soil testing, water control structures,
18 land leveling, banding, mole drains.
19 Are there others that you are aware of in
20 the EAA, BMPs in the EAA for phosphorus reduction?
21 A. There is others, yes. I gave you off the
22 top of my head at that time. I can think of pumping
23 plants as one, crop rotation.
24 I guess that's all that comes to mind right
25 now.
35
1 Q. Okay. With regard to Exhibit 1 here, are
2 you familiar with this report and this study?
3 A. I read the study there, the draft, I assume
4 after it came out, and that's been what, three years
5 ago? It's been that long.
6 Q. You haven't looked at this in three years?
7 A. Really I have not. For the last year I
8 have been in Hurricane Andrew.
9 Q. Do you remember what the general scope of
10 this report was and what its conclusions were?
11 A. The scope, scope is the research on what
12 practices would have a positive effect on reduction
13 of phosphorus concentrations in water, and the
14 conclusion I think was that there is a number of Best
15 Management Practices that appeared to have, to be
16 very beneficial in reducing concentrations.
17 There was no real specific that yes, they
18 do, or no, they don't. It was basically indicated
19 that continued research needed to be done, because
20 that research was done on a very small scale, small,
21 almost like a plot as opposed to a large agricultural
22 field.
23 Q. Do you know what practices they concluded
24 in here could have a positive effect?
25 A. I would have to go in there and look. I
36
1 don't remember.
2 Q. So you don't have current familiarity with
3 the specifics of this report?
4 A. No. It's been too long.
5 Q. Do you know whether the ones that you
6 listed would be among those used in here?
7 A. I think most of those would be in there,
8 yes.
9 MR. ROSENBERG: John, it's 10:30. Can we
10 take a five-minute break?
11 MR. GAINES: Absolutely.
12 (Thereupon, a recess was taken.)
13 MR. GAINES: Could you read back the last
14 question and answer?
15 (Thereupon, a portion of the record
16 was read by the reporter.)
17 BY MR. GAINES:
18 Q. Would it be correct to state that other
19 than coming here today, you have not done any
20 analysis or preparation specifically for your
21 testimony in this case?
22 A. That's correct.
23 Q. Do you intend to do any such analysis or
24 preparation prior to the final hearing in this
25 matter?
37
1 A. No, sir.
2 Q. Can you describe for me how the soil
3 testing operates as a BMP?
4 A. No, I can't.
5 Q. When you mentioned soil testing before,
6 what did you mean by that?
7 A. Well, when you asked the question I think
8 from the scientific side, which I don't have, that's
9 not my knowledge.
10 From the soil testing part of it, in a
11 general fashion my knowledge was relative to soil
12 testing done to recommend fertilizer application
13 rates. And yes, that's items that we do get into.
14 Q. What is the purpose of that type of soil
15 testing?
16 A. To make recommendations -- well, minimize
17 the amount of fertilizer applied to produce the crop.
18 Q. Does the SCS do any such testing itself?
19 A. No, sir, we do not.
20 Q. Does it participate in any aspect of soil
21 testing?
22 A. No.
23 Q. Does the SCS ever request soil tests,
24 obtain soil tests from any outside laboratory or
25 entity?
38
1 A. For crop recommendations we do not; that
2 is, we ask the growers to do that and provide that
3 information. And in fact, application rates are
4 based upon whatever the lab or in some cases IFAS
5 recommends. We use their recommendations.
6 Q. What lab? Were you referring to a specific
7 lab there when you said the lab?
8 A. I know they have one there at the IFAS
9 station there in Belle Glade. That's the only one I
10 have specific knowledge about.
11 Q. Are you familiar with the phrase calibrated
12 soil testing?
13 A. I'm familiar with the phrase, yes.
14 Q. Do you know what that entails?
15 A. Details, no, I do not.
16 Q. Do you know what the calibrated portion of
17 that refers to?
18 A. Other than it's a procedural process that
19 they go through to soil test, That's as far as I can
20 go.
21 Q. What about with regard to, you mentioned
22 water control structures, pumping plants and mole
23 drains.
24 How do those items operate as BMPs?
25 A. They are all part of the water management
39
1 on the farm. Each one has a part to play in how the
2 water is brought in, levels maintained and drainage
3 of the soil profile.
4 Q. Can you describe how the drainage of the
5 soil profile and associated water management on the
6 farm impacts on phosphorus in the outflow?
7 A. In a general sense, and it's based strictly
8 on what Bottcher and Izuno came out in the draft
9 report, in that when you remove water from the soil
10 profile, then reflood it, it releases phosphorus from
11 the soil.
12 Q. And it's the reflooding of the soil that
13 releases the phosphorus?
14 A. That's what the report says, yes.
15 Q. And given that, what is the Best Management
16 Practice that is intended to address that?
17 A. Minimize the water table fluctuation, try
18 to maintain a more stagnant or permanent water table.
19 Q. Would you be knowledgeable about the
20 appropriate water table level for a sugarcane farm in
21 the EAA?
22 A. We have a range that we within SCS
23 recommend, and that is 18 to 24 inches below the
24 surface.
25 Q. Is that recommended as a BMP to maintain it
40
1 within that range?
2 A. Correct, uh huh.
3 Q. Is that currently to your knowledge a
4 practice in the EAA to maintain the water table
5 within that range on a sugarcane farm?
6 A. The observations are that many of them are
7 using that range, yes.
8 Q. Would you be able to give me a percentage
9 of how much of the sugarcane land in the EAA is
10 maintaining a water table within that range?
11 A. No, I could not.
12 Q. Does that range differ from what was
13 historically practiced in the EAA prior to phosphorus
14 becoming an important issue?
15 A. Yes, in early years, my experience down
16 here, it was generally, water table levels were kept
17 deeper than that. A water table of around 24 to 36
18 inches was fairly common.
19 Q. Why was that done?
20 A. Probably for a number of reasons. Growers
21 did not have the ability in some cases to pump the
22 water quick enough following an anticipated rainfall,
23 so they kept the water tables lower to increase the
24 soil moisture storage, storage of water in the soil.
25 Q. And how specifically do the water control
41
1 structures and the pumping stations, pump plants and
2 the mole drains that you mentioned operate to
3 maintain the water table within the 18 to 24 inches?
4 A. Well, your pumping plant needs to be
5 designed so that they have the ability to remove the
6 water on a given design storm, so that they don't
7 have an adverse impact on the crop.
8 The water control structure when managed
9 properly allows the grower to keep the water table in
10 that range of depth.
11 The mole drains allows the grower to be
12 able to remove the water when needed much more
13 efficiently.
14 Q. More efficiently than what?
15 A. Than without mole drains.
16 Q. Without mole drains, how is the water
17 generally removed from a farm?
18 A. It flows through the soil profile and
19 probably in some cases even through the underlying
20 rock. Mole drain just gives it another avenue to the
21 field ditches.
22 Q. When you talk about a mole drain, what is a
23 mole drain exactly?
24 A. They pull an instrument kind of like a
25 bullet on a rod through, across the rows from field
42
1 ditch across to the next field ditch, only
2 intercepting with one field ditch.
3 Q. So it's like digging a tunnel underneath
4 the field?
5 A. Correct.
6 Q. And then after the instrument is pulled
7 through the soil, does the hole remain? It doesn't
8 cave in?
9 A. It stays, depending on the soil type. And
10 growers have different experiences with it, but
11 generally it will be there for one to three years.
12 I'm not sure that we have good -- I don't
13 have any personal knowledge of how long they actually
14 last other than grower reports.
15 Q. And the purpose there is to get more
16 efficient drainage?
17 A. Right, move water in and out, draining and
18 also irrigate, bringing water back in. It also helps
19 in that regard.
20 Q. Are you familiar with any analysis, the
21 analysis done by Bottcher and Izuno or in any context
22 of the draining the fields fast versus draining the
23 fields slow and what impact that has on phosphorus?
24 A. I believe that was discussed in the report,
25 the draft report referred to earlier, and the quick
43
1 draining of the soil profile does, in reflooding does
2 have a definite impact on increasing the release of
3 phosphorus, based again on that report.
4 Q. So the preferred would be, it's better to
5 drain the field slowly rather than quickly, is that
6 correct, as far as if you are concerned about
7 releasing phosphorus?
8 A. The preferred is to limit the amount of
9 fluctuation in the water table, try to maintain it
10 between our recommendation of 18 to 24.
11 And it's been so long since I read that,
12 I'm not sure which way that goes in that report as to
13 fast or slow.
14 Q. Are you familiar with any analysis of the
15 reduction of overall flow out of the EAA which will
16 or could occur as a result of implementing BMPs?
17 A. Am I familiar --
18 Q. With that as an issue?
19 A. Yes, I know that it's an issue, yes.
20 Q. Okay. Do you know what level of flow
21 reduction, if any, is anticipated from implementation
22 of the SWIM Plan BMPs?
23 A. No, I do not.
24 Q. What about in the context of arriving at
25 the 25 percent number in the settlement discussions,
44
1 was a flow reduction, was that an issue in
2 determining that number?
3 A. It was one of the items that was considered
4 in that, getting to that number.
5 I was not involved in that, all those
6 discussions.
7 Q. Do you recall whether there was an
8 anticipated level of flow reduction associated with
9 the 25 percent reduction figure in the context of
10 the, either the settlement or the SWIM Plan?
11 A. It seems, what I have read I think in the
12 SWIM Plan, it was a 20 percent was the number that
13 was considered.
14 Q. Do you have an opinion as to whether that
15 number is an accurate number?
16 MR. ROSENBERG: Objection as to form.
17 THE WITNESS: It's a good best guess.
18 That's about as -- I don't really have an
19 opinion one way or the another. There is
20 nothing to base that opinion on, I'll put it
21 that way.
22 BY MR. GAINES:
23 Q. Have you done any analysis of that flow
24 reduction issue?
25 A. No.
45
1 Q. Do you have an understanding of what would
2 cause a flow reduction in connection with the BMPs?
3 A. Uh huh, generally that being that you store
4 more water in the soil; i.e., keeping the water
5 tables higher, there would be less water going
6 downstream.
7 Q. So that the impact of maintaining the water
8 tables at 18 to 24 inches, we were only talking about
9 sugarcane land there -- let me ask, do you know how
10 much of the EAA is devoted to sugarcane versus
11 vegetables versus sod farming?
12 A. I could give you a guess as to acres.
13 There is 350,000 acres of cane, and that's out of
14 what, 525,000 acres of organic soils. Some of that
15 is in rice, some of it is in sod and some of the
16 remaining is in vegetables.
17 Q. Do you know what the breakdown is of the
18 sod versus vegetables?
19 A. No. I have read it, but I don't recall
20 right now.
21 Q. On the sod and the rice and the vegetables,
22 is there also a recommended level that the water
23 table should be maintained at?
24 A. I don't remember sod in particular.
25 Vegetables is variable depending on -- some
46
1 vegetables are more sensitive to flooding than
2 others.
3 And of course rice, generally it's going to
4 be flooded for the majority of the time.
5 Q. When you say vegetables vary, is that from
6 type, one type to the other?
7 A. Crop, whether it's radishes or corn or
8 whatever.
9 Q. The 18 to 24 inches was the SCS
10 recommendation on the water table; is that correct?
11 A. In conjunction with IFAS. Basically all
12 our information is derived from IFAS and the ARS
13 research when you do work in that arena.
14 Q. Are there also recommended levels for the
15 various vegetable crops?
16 A. There is. I don't recall what they are in
17 specific, but there are recommended levels.
18 Q. Would those generally be closer to the
19 surface than the 18 to 24 inches or further from the
20 surface?
21 A. Probably further in most cases.
22 Q. And that's because the vegetables are more
23 sensitive to flooding?
24 A. Correct.
25 Q. Do you have an awareness as to where the
47
1 greater degree of a phosphorus outflow situation
2 exists in terms of sugarcane versus vegetables?
3 MR. ROSENBERG: Objection as to form.
4 Do you understand the question?
5 THE WITNESS: I think.
6 MR. GAINES: I got halfway into that
7 sentence and I didn't see a way out of it. Let
8 me try again.
9 BY MR. GAINES:
10 Q. What has a bigger phosphorus problem,
11 sugarcane or vegetables, if you know?
12 A. Vegetables is what I have read.
13 Q. Are you able to put relative numbers on
14 sugarcane versus vegetables for phosphorus?
15 A. No, I could not.
16 Q. So with regard to the 20 percent flow
17 reduction or any flow reduction in connection with
18 BMPs, that is a result of maintaining that water now
19 in the water table rather than pumping it off the
20 farm?
21 A. That's correct.
22 Q. Okay. Is the flow reduction, does it
23 result from any other BMP practices?
24 A. Any others? That's the principal one.
25 There may be some impact of the others.
48
1 Q. Are there any other water retention BMPs
2 other than maintaining the water table that you are
3 aware of?
4 A. Well, the flooding of rice fields and also
5 flooding of the cane fields between crops to control
6 insects and nematodes in the soil was another BMP
7 that would also store water.
8 Q. Now is that an historical BMP or is that
9 one of the IFAS-ordered --
10 A. It's pretty much historical, yes. They
11 have been doing that for years.
12 Q. You are saying that was a pest control
13 practice more than a phosphorus control or water
14 control practice?
15 A. It accomplishes all three. It controls
16 pests, it reduces subsidence and it reduces the
17 amount of water going out of the field.
18 So therefore, it would reduce phosphorus as
19 well.
20 Q. When you talk about subsidence, is that
21 soil subsidence?
22 A. Yes, sir.
23 Q. What is soil subsidence?
24 A. The oxidation of the organic soils.
25 Q. And when you say oxidation of the organic
49
1 soils, what does that mean specifically?
2 A. When you remove the water from the soil,
3 the dryer it is, faster oxidation occurs.
4 Q. Oxygen mixes with the soil; is that
5 correct?
6 A. Oxygen, yes, indeed, it does.
7 Q. And what does that result in?
8 A. The organics disintegrate or you have a
9 loss of soil.
10 Q. Have you been directly involved in
11 monitoring soil subsidence in the EAA?
12 A. Personally, no, I have not.
13 Q. I take it people that you direct would be
14 more personally involved?
15 A. Correct, that's right.
16 Q. And who would be the person primarily
17 responsible for or with the most direct knowledge of
18 the soil subsidence issue in the EAA under your --
19 A. My staff, Ken Liudahl.
20 Q. When we are talking about the flow
21 reduction, that was the 20 percent flow reduction
22 that you mentioned, do you have an understanding of
23 where that flow reduction could be measured?
24 A. Yes, I assume you would measure that at the
25 S structures in water conservation areas.
50
1 Q. 5A, 6?
2 A. 5A, 6, 7A, right. Talking about base-wide
3 reduction. That's where it would have to be
4 measured.
5 Q. So that if the concept, if the BMPs were
6 fully implemented, there would be 20 percent less
7 volume of water passing through those structures as a
8 result?
9 A. That's what's been projected, yes, sir.
10 Q. Do you know whether that reduction in flow
11 would be made up from any other source?
12 A. No, I would have no idea.
13 Q. So have you ever gotten into any issues
14 about making up the flow reduction from Lake
15 Okeechobee or from some other source?
16 A. It would be logical to think that, yes, but
17 I have never been involved in that discussion.
18 Q. Have you been involved in any discussions
19 concerning the regulation level of Lake Okeechobee
20 and potential changes to it?
21 A. No, sir, I have not.
22 Q. You also mentioned land leveling as one of
23 the BMPs.
24 What does that involve and how does that
25 serve as a BMP?
51
1 A. Land leveling is the process of making the
2 elevation of the soil surface somewhat the same
3 throughout the field, and you really need it so that
4 you, when you maintain a water table level, that it's
5 somewhat uniform over the entire field.
6 And over periods of time when the cropping
7 system's fields become unlevel, and you could have a
8 six-inch difference of elevation across the field,
9 which if you maintain a water table level at 18
10 inches, in some places in the field you only have 12
11 inches, and that's not beneficial to the crop.
12 Q. So you want to maintain a level field so
13 you have the consistent exposed soil profile across
14 the entire field?
15 A. Right, uh huh.
16 Q. And how is the land leveling accomplished?
17 A. Generally with land leveling planes and
18 using the laser level, laser leveling device in a
19 central location, and the land planes react to the
20 laser beam.
21 Q. How often or how long has that been
22 occurring, that practice in the EAA?
23 A. They have been doing it for a number of
24 years -- well, for a long time.
25 Q. Was that a practice prior to the whole
52
1 litigation commencing?
2 A. Yes, sir, it was.
3 Q. In the course of your daily job, how often
4 do you get out to observe practices in the EAA?
5 A. On a normal situation, probably three or
6 four times a year. And that's, I say that's infield.
7 Driving across the highway, across the EAA, I do that
8 quite often, but as far as --
9 Q. On those three or four times a year, I know
10 you had a recent specific inspection type trip out
11 there with Mr. Burt, but in the normal context in
12 those three or four times a year, what is it that you
13 do out there?
14 MR. ROSENBERG: Objection as to form.
15 THE WITNESS: I go out with our field
16 office staff, and there is a rule showing me
17 some of the things that are going on out there,
18 particularly if there is any problems or, in
19 more cases than not, positive things that are
20 going on, sometimes new things that they have
21 been working with with some of the growers. And
22 I like to go out and observe those and get
23 insight into it.
24 BY MR. GAINES:
25 Q. You are responsible for a large area in
53
1 addition to the EAA; is that correct?
2 A. Yes, sir.
3 Q. Are you able to break it down; for example,
4 like what percentage of your time is spent on EAA
5 issues as opposed to other areas?
6 A. Well, if you remove the litigation aspects
7 from it, on an annual basis I try to visit each of
8 the offices in my area at least four times a year,
9 and so that would be four days. So say four days I
10 might spend a part of those days relative to the EAA.
11 Q. Other than those four, where would the
12 office be that you would be visiting?
13 A. West Palm Beach. Of course, we have
14 offices in Hendry and Glades County which also has
15 some of the organics in those counties as well.
16 Q. When you are not out visiting a field
17 office, you are located where?
18 A. In Lake Worth.
19 Q. And what is it that, what do you do when
20 you are in the office in Lake Worth?
21 A. Talk on the phone. Administrative and
22 supervisory activities.
23 Q. What does banding refer to? You referred
24 to banding earlier.
25 A. Banding of fertilizer as opposed to
54
1 broadcast fertilizing, banding, put it right at the
2 base of the plant.
3 Q. Are you able to go through each of these
4 practices such as banding and land leveling and
5 maintaining the water table, et cetera, and give a
6 prediction or analysis of how much phosphorus
7 reduction could be expected from those practices?
8 A. No, I could not.
9 Q. Would you be able to or do you have a feel
10 for the amount in tons or in tons per year of
11 phosphorus that emanates from the EAA historically or
12 currently?
13 A. Only what's in the SWIM Plan, and I don't
14 remember the figure, if I'm understanding your
15 question properly, the phosphorus that is coming out
16 of the EAA. I don't know that figure off the top of
17 my head, no.
18 Q. Are you familiar with the EAA rule, or it's
19 also sometimes referred to as the BMP rule?
20 A. Not in any depth. We are talking about the
21 one that the growers are making application now to --
22 Q. Correct.
23 A. Okay. I know that they are doing that and
24 it's coming along very well, based on my discussions
25 with the Water Management District staff, but I have
55
1 not been involved with that at all.
2 Q. What were those discussions with the staff
3 as to how that's coming along?
4 A. Just as to how the growers are responding
5 to the rule and what the, how many they have actually
6 had come in.
7 Q. You are talking about applications?
8 A. Yes, uh huh, applications.
9 (Discussion held off the record.)
10 (The documents were marked
11 Smola Exb. Nos. 3 and 4.)
12 BY MR. GAINES:
13 Q. Mr. Smola, are you familiar with the
14 documents or what type of documents these are that
15 have been marked as Exhibit 3 and 4?
16 A. I have not seen these documents before, no,
17 sir.
18 Q. On Exhibit 3, take a look at the very last
19 page. In the lower right-hand corner your name is
20 listed under the category Other.
21 A. Yes. It doesn't have this front on it.
22 It's got two packages of similar things. I don't
23 recognize the first few pages of it, though. It
24 seems to be different.
25 What I do with these, as soon as they come
56
1 in, we put them in the out box to my West Palm Beach
2 office, because David Legg has the privilege of
3 dealing with this, so I don't look at these.
4 Q. Is it your understanding that Exhibit 3 and
5 Exhibit 4 are permit applications submitted to the
6 South Florida Water Management District pursuant to
7 the, what I refer to as the EAA rule, but the Chapter
8 40E-63 rule?
9 A. That's correct.
10 Q. And you stated that -- well, these are
11 directed to a number of people, including yourself.
12 A. Right.
13 Q. I'm referring to the last page of Exhibit
14 Number 3 and the page 15 of Exhibit 4.
15 You state you put these in the out box to
16 go to your West Palm Beach office when they come in
17 to you?
18 A. Correct.
19 Q. And who do they go to?
20 A. David Legg.
21 Q. What function does Mr. Legg or the SCS play
22 with regard to such applications?
23 A. David is in charge of the Palm Beach
24 office, so he is the individual on my staff that
25 works with, leads the effort in working with the
57
1 growers.
2 To this point, we have had very little
3 involvement with this; two reasons, one being
4 reluctance on the growers because of litigation, and
5 also because of lack of staff.
6 We are trying to put -- we are putting
7 together a proposal for funding so that we can
8 increase our technical assistance level to the
9 growers in helping with this arena.
10 Q. Is the concept that the SCS receives that
11 application in order to review it in some fashion and
12 provide advice or comments to the applicant?
13 A. We have not been, no.
14 Q. What does Mr. Legg do with these when he
15 receives them?
16 A. He probably puts them in his file.
17 Q. Okay. Do you know how many of these have
18 come across your desk and gone into the out box to
19 Mr. Legg?
20 A. I suspect they all have. I had two large
21 envelopes full yesterday. I just happened to open
22 the envelopes and saw them.
23 Q. So as far as you know, at this point the
24 SCS has not played any active role in processing
25 these applications or analyzing the applications?
58
1 A. I believe David has worked with a couple of
2 the growers who actually have come in and requested a
3 plan, so to speak, what we call a conservation plan,
4 and he has worked with them.
5 Q. Do you know who he has worked with?
6 A. Wayne Boynton is one of them. And I don't
7 know the other.
8 Q. What is your understanding of what the
9 contents or purpose of these applications is?
10 A. You know, I'm not clear, to be honest with
11 you. Again, I haven't been involved in them for over
12 a year because of Hurricane Andrew, and I haven't had
13 time to get involved with this at all.
14 Q. I think you already stated that, but just
15 so we are clear, have you ever actually looked at or
16 read either Exhibit 3 or Exhibit 4?
17 A. No, sir. I have flipped through it in the
18 past, but never have actually read one.
19 Q. Are you familiar or have you become aware
20 of any recent data which indicates how -- well, are
21 you familiar with any recent data as to phosphorus
22 outflows from the EAA?
23 A. No, sir, I'm not.
24 Q. Are you familiar with any recent analysis
25 done by the District as to the preliminary
59
1 effectiveness of BMPs which have been implemented to
2 date?
3 A. No. I have seen no data relative to that.
4 Q. Are you aware of what any recent current
5 trends in phosphorus outflows from the EAA have been?
6 When I say recent, I mean within the last
7 six months.
8 A. It seems like I read something in the paper
9 is the only knowledge I have, whatever I read in the
10 paper.
11 Q. What did that indicate?
12 A. As I remember, it indicated a positive
13 reduction.
14 Q. Do you remember, did it indicate what the
15 scope of that reduction was?
16 A. No, I don't think it did.
17 Q. Have you been exposed to any information in
18 your work that confirms or refutes that?
19 A. No, I have not.
20 MR. GAINES: Number five.
21 (The document was marked
22 Smola Exb. No. 5.)
23 BY MR. GAINES:
24 Q. Do you recognize, Mr. Smola, what's been
25 marked as Exhibit Number 5?
60
1 A. I do.
2 Q. This is a document entitled 1988 Subsidence
3 Study of the Everglades Agricultural Area by the Soil
4 Conservation Service.
5 Did you have any role in preparing this
6 document?
7 A. Personally, no, I did not. The staff
8 that's listed here was my staff that did the study.
9 Q. Did you participate in the underlying study
10 in any way?
11 A. By participate --
12 Q. Did you conduct any of the analysis?
13 A. No, I did not.
14 Q. What participation of any type?
15 A. Just the administrative aspect. I
16 coordinated the work.
17 South Florida Water Management District
18 actually paid us to do this study and I was involved
19 in the coordination of the funds in the study.
20 Q. Has this 1988 subsidence study been
21 superseded by any subsequent study or updated by any
22 subsequent study?
23 A. No, sir, it has not.
24 Q. Is there any work in process to update
25 this?
61
1 A. Only from the thought process as we want
2 to, and we have, as far as any physical activity to
3 do it, no.
4 Q. What was the purpose of this study?
5 A. To determine the rate of subsidence by soil
6 type.
7 Q. Are you familiar with the results and
8 findings contained in here?
9 A. As I recall, I think the range of
10 subsidence was from three quarters of an inch up to
11 an inch and a half, I think was the range, where
12 somewhere around just over an inch was pretty much
13 the average.
14 MR. ROSENBERG: On an annual basis?
15 THE WITNESS: Yes, annual basis, correct.
16 BY MR. GAINES:
17 Q. Where is the Greenacres field office?
18 A. That is now the West Palm Beach field
19 office.
20 Q. When did that change?
21 A. Whenever they finished the new ag center
22 out there, '89 or '90, somewhere in there. I can't
23 recall the year.
24 Q. Who in the SCS currently would be the most
25 knowledgeable on the soil subsidence issue in the
62
1 EAA?
2 A. Probably Ken Liudahl, the scientist I
3 mentioned earlier on my staff.
4 Q. When did he first become a member of your
5 staff, give or take?
6 A. Three or four years. He came in sometime
7 after this study was done, so probably about '89 or
8 '90.
9 You ask tough questions.
10 Q. What relationship, if any, does the soil
11 subsidence issue have to the implementation of Best
12 Management Practices?
13 A. Well, we feel like with the implementation
14 of Best Management Practices; i.e., in particular
15 those that help maintain higher water tables, will
16 have a positive effect in reducing subsidence rates.
17 Q. And why would that be?
18 A. Because you have less soil profile exposed
19 to dryness. In other words, you are keeping it
20 wetter for longer, for continuing periods of time.
21 Q. As of 1988, was it correct that subsidence
22 of soil in the EAA was an ongoing process?
23 A. Oh, yes. It's been ongoing since God
24 created it.
25 (Discussion held off the record.)
63
1 BY MR. GAINES:
2 Q. Is that still an ongoing process?
3 A. Sure. It's a natural process.
4 Q. Has the rate changed in the past let's say
5 30 years, the rate of subsidence?
6 A. I don't know that we have enough
7 information to determine that. This really is the
8 first study I think that was done, so it's pure
9 speculation.
10 Q. You talked a minute ago about, that the
11 implementation of BMPs could slow down subsidence by
12 keeping the soil wetter.
13 A. Uh huh.
14 Q. Are you able to quantify the degree to
15 which BMP implementation maintained in the water
16 table would serve to slow down subsidence?
17 A. Are you looking for a number? No, it would
18 be impossible to say, at least for me.
19 Q. Is there an opposite relationship in that
20 the subsidence has a limiting effect on the ability
21 to implement BMPs?
22 A. Say that again.
23 Q. Does the subsidence of the soil limit your
24 options in implementing BMPs in any way?
25 A. Basically, no, unless you get into real
64
1 shallow soils.
2 And as they get real shallow, then you are
3 going to have to adjust your BMPs that are applied.
4 Q. Do you know what the range of the soil
5 profile is across the EAA, at least as of this study?
6 A. It's whatever is documented in there. The
7 numbers, I don't recall exactly what they are.
8 Q. Do you know how much of a soil profile is
9 necessary in order to maintain agriculture, sugarcane
10 farming in the EAA?
11 A. I don't personally. The people out there
12 in the business, they can probably tell you that very
13 easily, and there is a number that they use
14 generally, I think, but I can't tell you what it is
15 right now.
16 Q. Take a look at page 1, please, of this
17 document. There is a reference in the very first
18 sentence to "The soils of the Florida Everglades
19 constitute the largest contiguous body of cultivated
20 Histosols in the world."
21 What does the word Histosols refer to?
22 A. Organic soils.
23 Q. And by organic soils, that means -- what
24 does that mean?
25 A. Means they are derived from decayed plant
65
1 matter.
2 Q. In the second paragraph, the first sentence
3 indicates that "these soils will have to be abandoned
4 for crop production eventually."
5 Do you see that?
6 A. Uh huh.
7 Q. Is that an accurate statement, as far as
8 you know?
9 A. Yes, it would be, I think it is accurate.
10 Q. Do you know when they would have to be
11 abandoned for crop production?
12 A. No. You look what they are doing in Dade
13 County, they are farming rock, so maybe they can farm
14 the rock once the organics are gone, so it's
15 difficult to say.
16 Q. When will the organics be gone?
17 A. I have no idea.
18 Q. I mean is this, are we talking in terms of
19 five years, 50 years, 100 years?
20 A. I don't think that we can predict that, or
21 I can't. There are some variables in there that are,
22 you know, you just can't anticipate when that might
23 be.
24 Q. How much subsidence has been observed or
25 recorded in the EAA?
66
1 What thickness I guess of soil has subsided
2 up through this study?
3 MR. ROSENBERG: Object to form.
4 THE WITNESS: What I would relate to that
5 is the subsidence post out at the Belle Glade
6 research station, and it was put in in the
7 1920s. And it shows, I don't know, a nine or
8 ten foot loss at that location, but subsidence
9 can vary depending on the soil type and type of
10 material that the organics derive from.
11 BY MR. GAINES:
12 Q. Are you a soil scientist?
13 A. No, sir, I am not.
14 Q. How would you, if you were forced to do so,
15 which I guess you are, how would you label yourself?
16 A. By education, an agronomist; and by
17 profession, a manager.
18 Q. Does the farming activity itself that's
19 ongoing in the EAA contribute to the subsidence or
20 cause the subsidence in some way?
21 A. It has an effect on it, yes.
22 Q. And what is the mechanism for that?
23 A. If there was no farming there and you did
24 not provide any drainage, you would have a, maintain
25 a wet condition.
67
1 Q. So in other words, the fact that the land
2 isn't saturated or inundated with water is what
3 generates the subsidence?
4 A. Correct.
5 Q. So the only way -- is there any way to stop
6 that trend other than elevating the water table?
7 A. That's the only methodology I would have
8 knowledge of.
9 Q. And that portion of the soil profile that
10 is not inundated will continue to subside; is that
11 correct?
12 A. Most likely it will, yes.
13 Q. It states on page four at the top that
14 "Stephens (1969) estimated that biological oxidation
15 accounts for 50 percent of the one inch per year
16 continuing subsidence rate which has been observed
17 since drainage and initial subsidence."
18 First of all, have you read Stephens' 1969
19 report?
20 A. I have not, no, sir.
21 Q. Are you familiar with that conclusion from
22 that report?
23 A. I have read this in the past, yes.
24 Q. What would account for the other 50 percent
25 of the subsidence?
68
1 A. I'm not sure.
2 Q. Biological oxidation, is what you referred
3 to before?
4 A. That's what I referred to earlier, correct.
5 Q. Is there an erosion component to the
6 subsidence?
7 A. Generally, no. It would be very limited.
8 It would be wind blown, wind erosion.
9 That's I would say basically not, it would
10 have very little effect.
11 Q. Is there any quantification, has there ever
12 been any attempt to quantify the impact of wind
13 erosion on the soils in the EAA?
14 A. To my knowledge, there has not.
15 Q. Is that possible to do?
16 A. I think it's something that needs to be
17 explored. I think that's what we are seeing.
18 Phosphorus that is being carried from the
19 organic sediments is going into the field ditches and
20 canals and it's having a, its method of transport out
21 into the water.
22 Q. What about erosion through water, water
23 erosion? Is that a source of subsidence?
24 A. It would be very limited. It would have I
25 think a minute effect on subsidence.
69
1 Q. So do you have anything or do you know of
2 anything which would account for the other 50 percent
3 of the subsidence beyond --
4 A. I couldn't think of anything right now, no.
5 I'm sure somebody has that answer, but I can't answer
6 it today.
7 Q. Maybe it's Stephens.
8 A. Yes, Stephens probably does, that's right.
9 Q. Have you ever dealt with the issue or
10 analyzed the issue of what proprtion of the
11 phosphorus leaving the EAA is in particulate form
12 versus solulate form?
13 A. No, I have never gotten into that.
14 Q. Do you know whether anyone at the SCS has
15 looked at that issue?
16 A. I'm pretty sure they have not.
17 Q. Have you considered or has the SCS
18 considered any phosphorus reduction strategies based
19 upon sediment control?
20 A. We have not, but I think that's something
21 that we want to do in the future, but we have not to
22 this point.
23 Q. Also on page four of the same report we
24 were looking at, there is a statement at the bottom
25 of that page, next to the last sentence, talks about
70
1 "when the soil volume above the water table was
2 doubled, a corresponding doubling of the subsidence
3 rate was also observed."
4 Do you see where I'm --
5 A. I haven't caught up with you yet.
6 Q. The sentence starts "These short term
7 studies showed that --"
8 A. In the last paragraph?
9 Q. Yes, right, just beyond the midpoint,
10 beyond the 2.6 centimeters.
11 A. Okay, there we are.
12 Q. Do you see where I am?
13 A. Yes.
14 Q. Are you familiar with that relationship
15 between the doubling of the soil volume above the
16 water table, the subsidence rate doubles?
17 A. No, I'm not familiar with that
18 relationship.
19 Q. Let me ask you about the ground penetrating
20 radar that's referred to in this report and its use.
21 Do you have familiarity with that
22 technology?
23 A. I have observed it at work.
24 Q. Okay. Has that been used in the EAA by the
25 SCS since this report was completed?
71
1 A. Not to my knowledge. I can't remember any
2 time that it had been.
3 Q. Who would be the most familiar or most
4 knowledgeable person concerning the use of ground
5 penetrating radar to determine soil subsidence data?
6 A. We have a soil scientist on state office
7 staff in Sebring by the name of Doug Louis who,
8 that's his job, is to operate the ground penetrating
9 radar.
10 Q. Does the SCS own that equipment?
11 A. Yes, we do.
12 Q. When did you get it?
13 A. Probably around '84, I think -- maybe it
14 was before that. We have had one in the state since
15 the early eighties.
16 Q. On page six of the report it talks about,
17 in the second paragraph, the twofold purpose of the
18 study. And it states "First, the thickness of the
19 Histosols will be evaluated to add to the database on
20 which a correlation between management practices and
21 specifics subsidence rates can be made."
22 Are you aware of what database is being
23 referred to there?
24 A. No, I'm not.
25 Q. Has there ever been any attempt made by the
72
1 SCS to correlate management practices with specific
2 subsidence rates?
3 A. No, we have not done anything in that
4 regard. I think probably what that's directed
5 towards is the IFAS and ARS staff in Belle Glade.
6 Q. Do you know whether IFAS has done work
7 along those lines?
8 A. I do not know if they have or not.
9 Q. If they have, have you seen it?
10 A. No, I have not seen it.
11 Q. It also states, "Secondly, the soil map
12 units which were developed in 1974 to deal with
13 then-current conditions can be redefined as a
14 consequence sequence of this study."
15 What does that refer to, the soil map units
16 developed in '74?
17 A. That's the Palm Beach County soil survey.
18 Q. And is that a map? Is that in the form of
19 a map that depicts the soil types throughout the
20 county?
21 A. It's in the form of a published book
22 actually with -- there are several, almost 100-some
23 pages of area photos with the detailed soil types
24 listed.
25 Q. And that is published by the SCS?
73
1 A. Yes, sir, uh huh.
2 Q. How often does that come out?
3 A. It's just one time.
4 Q. When did it come out?
5 A. It was done in '74. I think the publish
6 date on that was probably '78. That's a guess. It's
7 in that area.
8 Q. And there is no plan -- those are not
9 updated at any time?
10 A. We do plan to update that fairly soon, in
11 fact.
12 Q. Is there any specific plan to do so?
13 A. Not right now, no, other than the
14 discussion process.
15 Q. I guess what is the, why is there a need to
16 update a soil survey of Palm Beach County?
17 Do the soil types change over time?
18 A. Generally not, but in the EAA they do,
19 because basically the soil types are somewhat tied to
20 the depth of soil to rock.
21 In that regard they have changed. I think
22 the map in the back of this report indicates that
23 change.
24 Q. You are referring to -- I guess there is
25 two maps.
74
1 A. Yes, should be two.
2 Q. One marked 1973 and one marked 1988.
3 A. Right.
4 Q. Pages, Bates number 0090034 and 0035.
5 A. It's hard to read. The colored map is much
6 better, I can assure you.
7 Q. You can see the Pahokee stuff, but other
8 than that -- well, the maps are difficult in this
9 format to really follow, because they are in black
10 and white and they don't really translate well on the
11 xerox here.
12 A. Right.
13 Q. Let me ask you to take a look at, there is
14 a table in here also.
15 On page 17, is the information that's set
16 out in this table the same? Is that what's depicted
17 on these two maps basically, the change in soil type
18 due to subsidence?
19 A. Should be. Of course it says -- is that
20 correct, does it say '78 at the top of that page?
21 Q. It does on mine.
22 A. Looks like it should be '73, because that's
23 what the map would refer to in the back.
24 Q. Did I understand you that as the soil
25 subsides and loses thickness, it can move from one
75
1 soil type, it goes into another soil type because the
2 classifications are based on thickness?
3 A. In part, yes, sir.
4 Q. What else are those classifications based
5 on?
6 A. In the organics out there, the inorganic
7 contents of the soil; i.e., sand silts and clay occur
8 in some of those organics in particular in and around
9 the lake itself, along the dike.
10 Q. Would that variable change over time?
11 A. No, it shouldn't.
12 Q. Are there any other factors or elements
13 that go into determining the soil type besides the
14 thickness and the inorganic contents?
15 A. I think you will find in the descriptions
16 within the soil types, it will refer to the parent
17 plant material that organics were derived from.
18 Q. Is that reflected in here somewhere?
19 A. It's been a long time since I read this. I
20 really don't know.
21 Q. Okay. Who at the SCS would be the most
22 knowledgeable or would have good working knowledge of
23 the area's taxonomic soil classifications and what
24 goes into those?
25 A. Ken Liudahl, the soil scientist on my
76
1 staff.
2 MR. GAINES: I see it's just about noon. I
3 think it would make the most sense to keep
4 going, because I think I'm going to finish
5 fairly shortly. And if you want to take like a
6 five-minute break right now, we can come back.
7 I don't think I have a tremendous amount more.
8 (Thereupon, a recess was taken.)
9 BY MR. GAINES:
10 Q. Mr. Smola, in the conclusion of the
11 subsidence report which appears on page 16, there is
12 a reference in the middle paragraph to the data
13 suggesting that the rate may be slower than in
14 previous years.
15 Are you familiar with that general concept
16 that the subsidence rate may have slowed?
17 A. No. I'm trying to remember. I can't
18 recall right now.
19 Q. Is it your impression that the subsidence
20 rate has been essentially unchanged or constant in
21 the EAA?
22 A. That's my impression. I think the
23 reference to slowing, I think the thinking there as I
24 remember is that the thinner the organics become, the
25 slower it is, because you have the organics stay wet
77
1 because there is less soil profile exposed to the
2 elements, so to speak.
3 MR. ROSENBERG: I'm not understanding this.
4 Are you saying -- maybe I have it wrong, and I'm
5 sorry to do this. When you say constant, I'm
6 not sure what that means.
7 Does that mean that the rate has been
8 constant, the same every year, or does that mean
9 it's a constant rate in the sense that maybe a
10 constant decline or a constant change?
11 Do you understand what I'm saying?
12 MR. GAINES: You mean that it's always been
13 going down as opposed to up or that it's been
14 like one inch, one inch, one inch each year?
15 MR. ROSENBERG: That's right. It may be
16 constant or it may be constant in that there is
17 a rate, like an arithmetic rate of change. It
18 may be a certain percent of change, may be
19 accelerating or declining, I don't know.
20 MR. GAINES: That's a lot more
21 sophisticated than anything I was trying to ask.
22 MR. ROSENBERG: I'm sorry.
23 BY MR. GAINES:
24 Q. My question was is your understanding that
25 the rate has been essentially unchanged?
78
1 And by that I meant if it's three quarters
2 of an inch to an inch and a half in different areas,
3 has it been that way for a long period of time?
4 A. I would assume that it has been, yes.
5 Q. Are you aware of any change in the
6 subsidence rate?
7 A. No, sir, I'm not.
8 (Discussion held off the record.)
9 MR. GAINES: Number 6.
10 (The document was marked
11 Smola Exb. No. 6.)
12 BY MR. GAINES:
13 Q. Exhibit 6 is a series of correspondence and
14 some other materials that appear to relate to
15 additional work on the subsidence issue, and you are
16 copied on some of these, I guess all of these
17 letters.
18 Do you know what work these letters are
19 referring to?
20 A. Yes. I will go through one at a time.
21 On the first one, June 29, '89, we
22 developed what we call a water management plan for
23 the particular individual involved to assist them in
24 doing a better job of managing the water table.
25 Q. Who was the individual involved there?
79
1 A. Big B.
2 Q. It says Progress Summary For Subsidence
3 Report.
4 Is this an analysis done just for a
5 particular farm?
6 A. Yes. I believe this was, the Water
7 Management District, as I stated earlier, paid for
8 the subsidence study. And I believe this letter is
9 referenced, is a continuation of that study and some
10 other work that was involved in that agreement we had
11 with the District.
12 Q. Well, that was my question. That's where I
13 was leading --
14 A. Okay.
15 Q. -- is that it seems that some of these
16 items are after the 1988 study, and I was wondering
17 whether those had ever been carried out and reported
18 in any fashion.
19 A. Reported?
20 Q. In the form of an update to this report or
21 some other type of formal report.
22 A. No, the '88 subsidence is the only one
23 that's been done. I'm not clear in my memory as to
24 what was involved here. I'm trying to remember. Oh,
25 I think I do.
80
1 This, when they did the subsidence study,
2 the District also provided Steven's stage recorders,
3 a level monitoring device, and we put those on some
4 particular farms. I didn't remember which ones they
5 are, but --
6 Q. Do those monitor the water table?
7 A. Yes, the level, right, water table.
8 Q. And what was the purpose of that effort?
9 A. I believe we was trying to get some handle
10 specifically on site location situations as to what
11 the subsidence rate was doing.
12 Q. And was there an effort to correlate it
13 with the water table in some fashion?
14 A. Yes, that was the intent. I had forgotten
15 about this particular --
16 Q. There are some graphs and tables attached
17 here covering I guess -- well, take a look at the
18 Bates number 0424983, which is transect 86,
19 Connecticut Sugar.
20 I think I understand what this is, but do
21 you have an understanding as to what this information
22 depicted here is?
23 A. Not without studying it, I don't.
24 Q. Okay.
25 A. I don't know that I have ever seen these
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1 particular figures or this.
2 Q. Did you have any involvement in these
3 studies --
4 A. No.
5 Q. -- other than being copied on the
6 information?
7 A. That's the only thing. In fact, I don't
8 remember reading this, to be honest with you, these
9 figures, but it's been a long time ago.
10 Q. Do you know whether, just taking the first
11 figure in the first column here, 7.55, what does that
12 indicate?
13 Is that a measure of the water table or the
14 soil thickness?
15 A. My assumption would be that's an elevation,
16 because you see at the top, assumed elevation of
17 limestone 5.96 feet, platform elevation of the
18 recorders at ten feet, so those are elevation levels.
19 Q. Elevation of?
20 A. Of the water table.
21 Q. Above what?
22 A. Well, above sea level. In this case here
23 you could just use a 5.96 feet, which is assumed
24 elevation of the limestone, and so the difference of
25 the 7.55 and the 5.96 would give you the depth of
82
1 water over the rock.
2 And I would assume somewhere they should
3 talk about the elevation of the soil surface to put
4 it all in, correlate it all. This is an assumed
5 level somewhere that's mentioned, but it's not here.
6 Q. You would need another piece of data about
7 the elevation of the soil surface above sea level or
8 above the limestone?
9 A. Right.
10 Q. Or to some reference point in order to know
11 what your entire profile was?
12 A. Yes.
13 Q. All right. And I take it from what you
14 have testified you didn't do any of this?
15 A. No, I did not.
16 Q. And you are sitting here guessing the same
17 way I am?
18 A. Exactly. Be happy to help you find out the
19 rest of the information, though.
20 Q. Okay. Do you know what ever became of this
21 effort?
22 A. No, I don't.
23 Q. Are you familiar with a book entitled the
24 Florida Erosion Control Handbook?
25 A. Yes.
83
1 Q. Who --
2 A. That's one of ours, isn't it? I think.
3 Q. Is that an SCS publication?
4 A. I believe it is, yes. You don't -- if you
5 have a copy to look at, I can verify it for you.
6 Q. I don't have a copy. I had a letter that
7 referred to it.
8 A. Okay.
9 Q. How often does that come out?
10 A. I think it's a one time --
11 Q. Would you have a copy of that in your
12 office?
13 A. I'm pretty sure that I do.
14 MR. GAINES: Number 7.
15 (The document was marked
16 Smola Exb. No. 7.)
17 BY MR. GAINES:
18 Q. Mr. Smola, do you recognize the document
19 that's been marked as Number 7?
20 A. Uh huh, I do.
21 Q. What is this document?
22 A. This was a response to the question from
23 the Water Management District. Probably, if I
24 remember correctly, it originated with the Army
25 Corps. They were wanting our determination made on,
84
1 relative to the Food and Security Act.
2 Q. What was the determination that was asked
3 for here?
4 A. As part of the Food and Security Act
5 requirement, the Soil Conservation Service has,
6 whenever a landowner wants to participate in USDA
7 programs, they are required to meet FSA, Food and
8 Security Act requirements. One of those is they
9 can't farm wetlands and a number of other things.
10 And the determination here relative to
11 convert, prior converted was done as part of that.
12 Q. What does prior converted mean?
13 A. Means it was converted before December 23,
14 '85. And that is exempt, that property is not
15 affected by any activities of the Food and Security
16 Act and therefore they would, they could get any,
17 have access to programs within USDA.
18 Q. So that the determination was that this
19 property had been converted from wetlands to crop
20 lands prior to December of 1985?
21 A. That's correct.
22 Q. And therefore, the property was -- what was
23 the result of that then?
24 A. The landowner can receive government
25 programs, money, and participate in USDA programs is
85
1 the easiest way to say it.
2 Q. Because he is not converting new wetlands
3 to farm land?
4 A. Right.
5 MR. GAINES: Number 8.
6 (The document was marked
7 Smola Exb. No. 8.)
8 (Discussion held off the record.)
9 BY MR. GAINES:
10 Q. Take a look, please, at what's been marked
11 as Exhibit 8, Mr. Smola.
12 Have you ever seen this document before?
13 A. Yes, I have.
14 Q. What is this document?
15 A. This is a report of the field trip that we
16 made the first week of May to visit some of the
17 growers to get an overall feeling for what the
18 growers were doing relative to implementing BMPs and
19 get a feel for their experience as they, that they
20 were happy.
21 Q. I see the document is signed by Mr. Burt,
22 John Burt.
23 Did you play any role in preparing the
24 document?
25 A. I was involved in the discussions, yes.
86
1 Q. You say you discussed what would be in the
2 document