Florida Administrative Code › 40 - WATER MANAGEMENT DISTRICTS › 40E - South Florida Water Management District › Chapter 40E-6 - WORKS OR LANDS OF THE DISTRICT › Section 40E-6.011 - Policy and Purpose

Current through Reg. 50, No. 138; July 16, 2024
(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:
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*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.
New 9-3-81, Formerly 16K-5.01(1), Amended 12-29-86,
					 9-15-99, 7-12-06, 8-12-13.