A trial finally settles the question of wetland destruction at Lake Point

Article Posted on April 3, 2018

Dear Friends,

Hearing that “wetlands are being destroyed” causes an immediate, angry reaction among Martin County residents. We want no one messing with our wetlands, and for good cause.Wetlands are critical to protecting and improving water quality, providing fish and wildlife habitats, storing floodwaters, and maintaining surface water flow during dry periods.

The good news is that all wetlands in Martin County are protected. Period. That's been the case even before the Comprehensive Growth Management Plan was written in 1982. Yet in 2012, the destruction of wetlands became the initial rallying cry to sway the opinions of local government officials – and the public – against the legally permitted Lake Point Restoration Project near Indiantown.

The company asked former commissioner and environmentalist Maggy Hurchalla to recant her claims that Lake Point had “destroyed all the wetlands” on its project. She refused. The company filed a lawsuit alleging that Hurchalla had used lies and misinformation to interfere with Lake Point's government agreements.

Five years later, after observing the jury's reaction to opening arguments on the second day of the 8-day trial in February, the presiding judge offered to mediate a settlement between Hurchalla and Lake Point attorneys, who said they would drop their suit, including claims for five years' of legal fees, if Hurchalla recanted and apologized for her misstatements. Hurchalla told the judge that Lake Point's offer was “not a fair settlement,” so she refused.

No surprise then that the testimony during the 8-day trial in February often focused on wetlands. Were the wetlands destroyed, or not?

The evidence showed that 10 delineated wetlands exist on the 2,000-acre Lake Point project near Indiantown. The two largest wetlands are under a federal conservation easement that will protect them in perpetuity, even if the county or state changes its rules or the property is sold. They are preserved forever.

The trial evidence also verified Lake Point's assertion that no wetlands had been destroyed, as the county's Growth Management Director Nicki van Vonno had first told commissioners in 2013. She reported then that the area in question was a cornfield.

Van Vonno's observations were further substantiated by the reports of the county's Engineering and Ecosystem Restoration departments, as well as by scientists from the South Florida Water Management District, the Florida Department of Environmental Protection and the US Army Corps of Engineers, who had come to the project's site in 2009 and 2010, prior to issuing Lake Point's mining permits, to take soil samples, document plant growth and determine the site's water flows.

Yet Hurchalla continued to claim that wetlands were being destroyed at Lake Point.

Consequently, more than six hours of trial testimony in one day focused specifically on wetlands. The trial transcripts are much too long to recap here; however, the jury sought explanations that likely reflect the public's interests as well, so let's start with some basic facts and background:

FACT: The original agreement between Martin County and the South Florida Water Management District, unanimously approved by Commissioner Sarah Heard and her fellow county commissioners in 2008, gave Lake Point the right to mine rock and use the land, which included corn and sugar cane farms, a former orange grove and a cattle ranch, to create revenue and produce a return over 20 years on Lake Point's $48 million investment, thus the project is more than just a rock mine. That agreement – had Hurchalla not interfered – would have concluded in 14 years with Lake Point donating all of its land to SFWMD. (The agreement now has been altered to a 50-year time frame, as part of the SFWMD settlement with Lake Point.)

FACT: In order for an area to be considered a wetland, three conditions must be met: a certain type of soil must be present, known as hydric soil; a prevalence of hydrophytic vegetation (plants adapted for life in saturated soil conditions) must be growing; and hydrology that keeps the soil saturated or inundated with water for long periods of time must exist. All three conditions must be present in order to qualify a site as a wetland.

FACT: The wetland definition, including the type of soil required, was established by the state in 1994 and preempts all other state, county and municipal definitions. Martin County attempted to change the county's wetland definition in 2013, as part of Hurchalla's changes to the county's Comprehensive Growth Management Plan, and was immediately rejected by the state. (Federal regulations are slightly different, but apply only when a federal permit is required.) Areas designated as wetlands after government inspection and mapping are called “delineated wetlands.”

During the trial, Hurchalla pointed to areas on a map of the Lake Point project that seemed to reveal the presence of wetlands through aerial photography – land that had apparently been later plowed for farming. As on most farms, some areas with lower elevations will collect water for various periods of time – commonly called agricultural wetlands – but they are not true wetlands. Farmers and ranchers grow crops or fodder on those areas.

Hurchalla's defense team's expert, an environmental ecologist, agreed with Hurchalla's assessment, although he admitted that he had not visited the property personally and had not taken any soil samples, because Hurchalla had been unwilling to pay his $534 fee for the on-site assessment. His conclusions were based entirely on aerial photography and on sketched maps drawn from aerial photographs.

In rebuttal, Lake Point attorneys played a video clip for the jury of the expert's presentation, “Small Wetlands, Big Impact,” during a 2017 Martin County Conservation Alliance meeting in which he stated unequivocally that wetlands cannot ever be determined through aerial photography alone. An accurate wetland assessment REQUIRES an on-site visit – words spoken in the expert's voice that contradicted his own trial testimony.

The $534 that Hurchalla refused to spend then for an accurate assessment of wetlands now has cost her $4.4 million in damages today, awarded by the jury. Her assertion that wetlands were being destroyed – when they actually were being restored – also led the county into a lawsuit that ultimately will cost taxpayers more than $30 million. Imagine how many wetlands could have been restored in Martin County, or how many stormwater treatment areas could have been created, with that wasted money.


Rick Hartman

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