Developers Facing Environmental Woes

by Bilzin Sumberg

- Q&A with Howard Nelson, Partner, Environmental Practice Group Chair 

MIAMI-In January, the Department of Economic Opportunity issued a report on the state’s business climate. The report called for a statewide strategy to ensure adequate future water supplies without stunting continued development.

Ground water is all but disappearing in Florida, with reclaimed water becoming the norm for new development and construction. Continued growth throughout the State is hinged upon creating a system that uses reclaimed water and irrigation. Nowhere is this more relevant than in South Florida, which stands out as one of the fastest growing regions in the state.

According to Howard Nelson, environmental attorney with Florida-based Bilzin Sumberg, despite the need and urgency for this critical infrastructure, local government simply does not have the ability to fund on its own. caught up with Nelson to discuss the solutions to the challenges at hand. Why was the Florida Department of Economic Opportunity established and what does it aim to achieve?

Nelson: The Florida Department of Economic Opportunity was established to combine several former state departments under one umbrella, with the goal of creating a unified economic development and growth management framework to guide the future development of Florida. What are some of the biggest environmental issues or concerns facing developers in Florida today?

Nelson: The three largest environmental concerns facing real estate developers are: the uncertainty of the regulatory process, vestigial contamination issues caused by Florida's agricultural history, and a lack of potable ground water.

There are a multiplicity of agencies (including, but not limited to, the Environmental Protection Agency, Florida's Department of Environmental Protection, County Health Departments, County Environmental Regulatory Agencies, Water Management Districts, and the U.S. Army Corps of Engineers) with overlapping jurisdictions that govern environmental regulation in Florida. Understanding how, when and where these rules apply and their overlap is one of the most complicated issues in the development process. Additionally, many of these agencies do not have regulatory time frames that correspond to the normal development process and, therefore, developers are often faced with considerable risk decisions in moving forward without complete agency sign-offs.

Florida's agricultural history involved, in many cases, the routine application of pesticides, herbicides and fungicides over large tracts of land. Many of these areas are now coming into the development framework. Developers have had to learn new methods of assessing environmental contamination on large tracts of land and new techniques for addressing environmental contamination concerns as they arise.

Florida's growth is on a course to outstrip the aquifer's ability to provide potable and non-potable water to serve existing and new populations. As I mention below, one of the major impediments to development and a strategic focus of several state agencies is the integration or alternative and supplemental water systems to bolster the state's water supply. What strategies are government agencies employing to address the water supply crisis affecting our state, and how is this impacting development?

Nelson: Regional agencies such as the Water Management Districts are looking at large scale frameworks which require alternative water systems and supplemental water systems, such as desalinization, surface water filtering and adaptive re-use of waste water to supplement the growing shortage of potable ground water. Local governments are, in large part, just beginning to look at these issues. Many of the solutions are simply too expensive for individual local governments to undertake, resulting, in many cases, in denial of development approvals or expensive impact fee or participation agreements to fund alternative water systems.

Come back this afternoon for part two of this interview, where Nelson discusses new alternative water sources, how systems are being funded and how public-private partnerships are tackling environmental concerns.

This article is reprinted with permission from


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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