40E-6.011. Policy and Purpose

(1) This chapter governs the use of or connection to works or lands of the District. Conditions and criteria are established to ensure that uses are compatible with the construction, operation, and maintenance of such works or lands.

(2) Due to the critical importance of works and lands of the District in providing flood protection and other benefits, it is considered essential that the District retain complete dominion and control over the use of such works or lands, including those subject to right of way occupancy permits. The District acts in a proprietary capacity in acquiring lands or interests therein for utilization as works of the District. These rules are based upon proprietary concepts of property law. A “permit” to utilize works or lands of the District is a contract between the District and the “permittee,” whereby the permittee obtains a license which is revocable at will, except as otherwise provided herein. All risk of loss regarding expenditures in furtherance of the permitted use is borne by the permittee. The District retains complete discretion as to the manner, if any, in which works or lands of the District shall be utilized, and nothing in these rules is intended to limit that discretion.

(3) An exception to subsection (2), above, is made for governmental entities and utilities, which may have their consent to utilize District works or lands revoked only for cause, pursuant to the criteria set forth in this chapter.

(4) The District has determined that an unencumbered 40 foot wide strip of right of way, measured from the top of bank landward, is required in order for the District to perform the required routine and emergency operations and maintenance activities necessary to insure flood protection to the entire community. In this 40 foot right of way, subject only to limited exceptions provided in this rule, the District shall not authorize any above ground facilities or other encroachments.

(5) The requirement for the unencumbered 40 foot right of way shall be applicable regardless of the District’s quality of title to the right of way and regardless of the width of the overbank right of way.

(6) In the past, the District has authorized certain above ground facilities and uses on its rights of way within a 40 foot wide area adjacent to the top of bank, as set forth in subsection (4), above. However, over time and with experience gained in disaster preparation, operation and recovery, the District has determined that these previously authorized above ground facilities and uses are now inconsistent with the current and future operation and maintenance needs of the District. These facilities and uses have also been determined by the District to increase the operation and maintenance costs (for both routine and emergency operation and maintenance activities) and pose a significant additional physical burden on District staff. Subject to those uses specifically allowed in the Right of Way Criteria Manual for Use of the Works or Lands of the District (Criteria Manual),  no future authorizations by the District shall allow above ground facilities or uses within that 40 foot wide area adjacent to the top of bank within the right of way, and all previous authorizations for facilities and uses shall be expressly limited to minimize their adverse impact on District operations and maintenance. Specifically, such authorizations shall not be modified or transferred, and shall be subject to the revocation provisions set forth herein as determined necessary by the District in order to meet its current and future operation and maintenance responsibilities to provide adequate flood protection to the community.

(7) In order to effectively and efficiently evaluate proposed installations of above ground facilities and uses, the District has segmented the canal and rights of way into five (5) operational zones shown on the diagram below:

 

*The District’s rights of way vary in width, and may be either less than forty feet or more than forty feet in width. Accordingly, in those cases when the right of way is less than forty feet, only those zones depicted above would be applicable to the actual width of the right of way.

The specific above ground facilities and uses which are consistent with the District’s operation and maintenance needs, and which will generally be authorized are set forth in Rule 40E-6.221, F.A.C. Those facilities and uses not specifically identified as being consistent with the District’s operation and maintenance needs for the respective zones have been determined by the District to be inconsistent with District operation and maintenance needs and no District authorization shall be granted.

(8) Due to the varying widths and physical limitations of the rights of way obtained by the District for the canals of the Big Cypress Basin, maintenance of the Basin canals is currently performed with different equipment than is utilized throughout the remainder of the District. Based on the differing maintenance needs of the Big Cypress Basin, application of the five operational zones, as set forth in subsection (7), above, will be reviewed on a case by case basis taking into account the width of overbank right of way, the accessibility of the right of way to land-based maintenance equipment and any site specific conditions that would impact the Basin’s ability to operate and maintain the canal which is the subject of a particular application.

(9) The District reserves sole authority to make a determination that portions of the District’s rights of way are inaccessible for routine maintenance activities due to a variety of physical limitations. While a determination that a certain segment of right of way is presently unusable for routine land-based maintenance activities and relaxation of the restrictions in zones 2, 3, 4 and 5 may be allowed, such determination shall be at the sole discretion of the District and does not obviate the need for individuals with proposed or existing facilities within these areas to obtain permits from the District. Further, the District reserves the right to enter these areas to conduct emergency operations or to require the removal of any encroachments that are inconsistent with these rules at such time as maintenance access is perfected through the area.

(10) The District has further determined that certain facilities and uses meeting specific minimum criteria for various right of way zones shall more efficiently be granted authorization with a limited review by District staff, since these specific facilities and uses do not adversely impact the District’s ability to operate and maintain the District’s right of way and works of the District. Such authorizations shall be administered by the provisions of Rules 40E-6.201 and 40E-6.221, F.A.C., as a notice general permit. The District will incur less expense in the review of notice general permit applications, and, therefore the application processing fee associated with such facilities and uses shall reflect accordingly, as set forth herein. If multiple uses are being requested and any of those uses require a standard permit, all authorizations shall be requested under the standard permit application and a notice general permit will not be required.

(11) In managing its canal and levee system the District must, from time to time, change its criteria and permit requirements based on regional and site specific conditions. Applicants are cautioned that the information provided by District staff is based on the best available information at the time the information is conveyed, but is subject to change. This is particularly true when applicants delay months or years in submitting an application for permit. Therefore the rules, criteria and requirements in effect at the time a formal application is received for review will be applied to the permit application.

Rulemaking Authority 373.113 FS. Law Implemented 373.016, 373.085, 373.086, 373.118, 373.129, 373.1395 FS. History–New 9-3-81, Formerly 16K-5.01(1), Amended 12-29-86, 9-15-99, 7-12-06, 8-12-13.