LAKE POINT WETLANDS
A major issue in the Lake Point trial was whether wetlands would be impacted.
The attorney for Lake Point made the argument that Maggy Hurchalla wanted to destroy Lake Point and knew how Martin County residents love their wetlands, so she made false statements about wetlands being destroyed.
The jury was told that Hurchalla’s statements on wetlands were “irresponsible lies” throughout the trial. It was held up as proof that her motive in criticizing the Lake Point project was a vengeful desire to bankrupt Lake Point.
The wetland statements were:
Hurchalla said in a meeting with Kevin Powers: “Wetlands have been destroyed.”
Hurchalla stated in a public email to county commissioners: “The new plan for the ‘Public Works Project’ destroys 60 acres of wetlands.”
There were two wetland issues.
Were wetlands destroyed?
Did the Corps permit allow destruction of 60.9 acres of wetlands?
# 1 WERE WETLANDS DESTROYED? The SAGA of the little wetland that isn't.
In early 2008, Lake Point produced a plan for their Public Works Project on 2,200 acres in western Martin County. It included the east half of the property (Phase I) which had been previously approved as a 20 acre subdivision for polo players and the west half (Phase II).
The plan called for the property to be deeded to SFWMD, the polo subdivision would be abandoned, and Phase I and Phase II would become a Public Works Project. There would be stormwater treatment areas in Phase I and two stormwater lakes in Phase II.
The Public Works Plan outlined wetlands that would be preserved in both Phase I and Phase II. The Plan became “Exhibit A” in the contract that Lake Point signed with the SFWMD in November 2008. The same Plan was shown as Exhibit A in the Interlocal Agreement signed by Martin County and the SFWMD in May of 2009.
THE PICTURE ON THE FOLLOWING PAGE IS “EXHIBIT A” OF THE TWO CONTRACTS.
Exhibit A designates wetlands with cross-hatched buffers around the wetlands. The little wetland at issue is hanging down into the top part of the southern stormwater lake.
The little wetland is shown with the cross-hatched buffer around it, just like all other wetlands that were intended to be preserved. It was clearly in an inconvenient location in regard to a mining operation. So if the owners and their consultants did not believe that it really was a wetland that had to be preserved, they surely would not have shown it in that location on the Plan that was included in both contracts.
Referring to “Exhibit A”, the attorney for Lake Point told the jury that “there is nothing on this plan to indicate this is a wetland.” However, the attorney was not under oath to tell the truth. He presented no witnesses to confirm his statement.
“Exhibit A” speaks for itself.
But by 2011, it was clear that the little wetland wasn’t there anymore.
The little wetland had disappeared.
A reasonable person could assume that it had been destroyed. Had anyone gone on site to look for it, there would be no trace of it.
THE PERMITTED PLAN ON THE FOLLOWING PAGE WAS APPROVED BY DEPARTMENT OF ENVIRONMENTAL PROTECTION (DEP) IN JANUARY 2011.
It was based on a field study of Phase II by DEP Agency Staff that was done in July 2009. The little wetland shown hanging down into the southern stormwater lake in “Exhibit A” had disappeared.
Jamie Rusbridge, operations manager for Lake Point, testified at his deposition, that in January of 2009 his father, one of the Lake Point owners, directed him to prepare the area where the little wetland was shown for farming. Rusbridge said that he cleared vegetation in that area, removed unstable soils, and added and compacted fill to make the area suitable for parking heavy equipment.
In his deposition Rusbridge insisted that there could not have been a wetland there or the DEP and the Army Corps of Engineers would have identified it when they did their onsite analysis of wetlands in Phase II. However, no Phase II wetland analysis by these agencies was done prior to July, 2009. By 2009 the wetland #10 had been disked over and trucks were being parked on it. At trial, Rusbridge testified that he was disking a field for farming. He testified that wetlands regulations do not apply to prepping an area for farming.
Maggy Hurchalla’s expert, Greg Braun, a Certified Environmental Professional, compiled an expert report on the little wetland. He testified in court consistent with that report. He found that the Soils Atlas for Martin County showed wetland soils at the site. He found that aerial photos from March 13, 2006 indicated a wetland at that location. Where crops aren’t grown and wetland plants are allowed to flourish, it shows up clearly on the aerial photo in the same way as other wetlands on the property show up. Braun confirmed that the little wetland was shown in “Exhibit A” of the contracts in the same way as other wetlands on the property.
Lake Point’s expert, Ed Weinberg, testified that the little wetland did show up on aerials as a wetland. He said that he originally identified it as a wetland but later he decided it wasn’t.
THE AERIAL PHOTO FROM GOOGLE EARTH IN 2006 SHOWS THE AREA IS NOT FARMED. IT SHOWS THE AREA OF THE LITTLE WETLAND (IN THE LOWER LEFT HAND CORNER) HAS THE APPEARANCE OF A WETLAND. THE VEGETATION DIFFERS FROM THE SURROUNDING AREA.
The Google aerial photo from January 20, 2009 shows fresh bulldozer tracks where the 2006 aerial had indicated a wetland. They appeared at the time Jamie Rusbridge said he was prepping the area by removing vegetation and wetland soils and adding fill.
Rusbridge testified at trial that he was simply disking the field for planting. The bulldozer tracks appear only in the corner where the little wetland was.
THE AERIAL SHOWS THAT HEAVY EQUIPMENT HAD WORKED ON THE AREA.
It shows that similar work was not done on the field surrounding that area.
The Google aerial from December 31, 2009 showed trucks parked on the site where the little wetland shown in the contracts had once existed.
THE AERIAL SHOWS THAT, MONTHS AFTER THE BULLDOZER TRACKS SHOWED UP, THE LITTLE WETLAND AREA WAS USED FOR TRUCK PARKING.
It also shows that no crops were planted in the surrounding field. “Prepping for farming” as Rusbridge had testified appeared to be limited to the area of the little wetland.
Hurchalla’s expert also reviewed a preliminary map of wetlands that was drawn by Weinberg (Lake Point’s environmental consultant) back when Mr. Weinberg previously created a preliminary wetland assessment for the prior property owners. The earlier map showed the little wetland as wetland #10. Did Mr. Weinberg ask Lake Point what happened to wetland #10 when he created the new wetland survey for Lake Point?
Weinberg testified that he later decided that it wasn’t a wetland, and he did not show it to the DEP and Army Corps agency staff when they first went to the Phase II site in July 2009. It would not have mattered if he had taken the agency staff to the site of wetland #10 in July of 2009 because it was already destroyed.
THE LITTLE WETLAND WAS IDENTIFIED AS A WETLAND IN PRIOR SURVEYS. IT ALSO WAS IDENTIFIED AS A WETLAND IN “EXHIBIT A” IN THE CONTRACTS.
HURCHALLA PRESENTED EVIDENCE THAT:
Lake Point’s own consultant had identified the area as wetland in earlier fieldwork.
The area had been shown as a wetland area that would be preserved in the contract between SFWMD and Lake Point signed in November, 2008.
The Lake Point manager removed the wetland indicators (wetland soil, vegetation, and hydrology) from the area in January, 2009.
Subsequent photos show the area as a truck parking lot.
In the contract between Martin County and the SFWMD signed in May, 2009, the project plan (Exhibit A) continued to show the area as a wetland that would be preserved.
No wetland verification by agency staff occurred until July 2009 when the area had already become a truck parking lot.
LAKE POINT PRESENTED EVIDENCE THAT
Their consultant testified that he had done soil testing that convinced him it was not a wetland.
Their consultant did not stake it out or show it to the DEP or Army Corps agency staff, but he said that he allowed them to go anywhere they wanted on the property.
The manager for Lake Point testified that he disked the area for farming in January 2009.
The manager testified that he believed preparing an area for farming was exempt from wetland regulations.
The County and SFWMD staff testified that they first visited Phase II of the project in November 2012 and in January 2013. They found no evidence that wetlands were destroyed.
Lake Point’s attorney repeatedly told the jury: “Everyone told Ms. Hurchalla that no wetlands had been destroyed and she persisted.” “If she really cared she would have gone out there with a shovel to see if there were wetland soils.”
But if anyone had looked after 2009, they would not have found any trace of the wetland.
If Hurchalla, or anyone else had gone out with a shovel, they would have found that the wetland soils had been removed in January of 2009.
#2 THE ARMY CORPS PERMIT ALLOWS 60.9 ACRES OF WETLANDS TO BE DESTROYED.
The 2nd issue was not about wetlands that had already been destroyed. It was about wetlands that would be destroyed when the southern stormwater lake was completed.
The first page of the Army Corps report shows that 60.9 acres of agricultural wetlands would be dug up or filled.
Lake Point first argued that excavating and filling wetlands was not destroying wetlands. They gave up on that argument. Their second argument proposed at deposition by George Lindemann Jr was that the 60.9 acres were actually drainage ditches rather than wetlands. The Corps permit contradicts that argument.
Lake Point then argued that an “agricultural wetland” was not a wetland.
Lake Point's consultant (Weinberg) agreed that the area had wetland soils and wetland hydrology. He agreed that the area met all criteria for wetlands. He agreed that he had a long fight with the Corps trying to get them to call it something other than a wetland.
EMAILS FROM ARMY CORPS TO WEINBERG
7/15/11 email from Corps to LP consultant
identifying the 60.9 acres as “wetland 11” rather than “previously impacted area'
10/26/11 email from Corps to LP consultant
Stating that the project description includes excavation and fill in 60.9 acres of wetlands for extraction of limestone
10/20/2011 Dept of Interior letter to Corps
Describes mitigation requirements for filling and excavating 61 acres of jurisdictional wetlands and 72 acres of agricultural ditches
01/19/12 email from Corps to Ed Weinberg
Corps to LP consultant asking if the applicant wished to object – the disagreement was that the Corps insisted on calling the 60 acres “wetlands” and LP wished to call them “former wetlands”
1/19/12 email from LP consultant to Corps
No, they do not wish to object
The Corps reviewer was: Krista.D.Sabin@usace.army.mil (561) 472-3506
Lake Point’s expert Weinberg agreed that the Corps required mitigation for wetlands impacts to make up for dredging and filling 60.9 acres of agricultural wetlands. He agreed that the area would be impacted and that it was not drainage ditches. He called it a farmed area that was previously a wetland. The Corps refused to accept that terminology.
Weinberg continued to insist that if there was no wetland vegetation then it was “a former wetland.” That is not what the Corps definition of a wetland says:
"Wetlands are areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas." - Definition of wetlands as used by the U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA) since the 1970s for regulatory purposes.
Weinberg and Lake Point’s attorneys continued to say that calling the 60.9 acres “wetlands” was a lie designed to destroy Lake Point’s reputation.
There are 2 wetland issues in this case. The issue of the Corps permit allowing 60.9 acres to be destroyed differs from the little wetland issue in that the 60.9 acres of wetlands in the far southwest corner of Lake Point have not yet been destroyed.
At the trial, Lake Point’s attorneys did not ask the County and SFWMD about the Corps permit. They did not ask them for a definition of wetlands. They did not ask them to confirm that an agricultural wetland was NOT a wetland. They simply asked if their on-site inspections in 2012 and 2013 had discovered that wetlands had been destroyed. They answered “No.”
Hurchalla's expert, Greg Braun, cited the Corps definition of a wetland and verified that a wetland is a wetland if it has wetland soils and wetland hydrology and could grow wetland vegetation if allowed to.
Braun emphasized that the Corps cannot call something a wetland and require wetland mitigation if it does not meet the definition of a wetland. He confirmed that an agricultural wetland is a wetland.
HURCHALLA’S EVIDENCE THAT AN AGRICULTURAL WETLAND IS A WETLAND
uncontested evidence of the Corps definition of a wetland
uncontested evidence that an area that meets wetland criteria is a wetland
LAKE POINT'S EVIDENCE THAT AN AGRICULTURAL WETLAND IS NOT A WETLAND
Their consultant’s contested opinion that an area that does not have wetland vegetation cannot be called a wetland
His opinion that meeting all wetland criteria does not mean the area is a wetland.
Lake Point’s attorneys did everything possible to confuse the issue. They repeatedly told the jury that “everyone” knew that an agricultural wetland was not a wetland.
They insisted that calling it a wetland was proof that Maggy Hurchalla was knowingly lying in order to destroy Lake Point.
Is a kitchen door a door?
Is a car door a door?
Is a barn door a door?
While it might seem strange that a $4 million verdict rested on deciding that a barn door was not a door, Lake Point insisted throughout the trial that saying that the Corps permit would allow wetlands to be destroyed was the most damaging thing Maggy Hurchalla did to Lake Point’s reputation.
Click here to download the above Wetlands page as a PDF file.