40E-0.115. Variances from Water Use Restrictions

(1) All users requesting relief from the provisions of Chapter 40E-21, F.A.C., shall file an application for variance but must conform to water use restrictions until the Executive Director grants a temporary variance or the Board grants the variance.

(2) Criteria for Issuance – No application for variance shall be granted unless the applicant provides reasonable assurances that the variance will not otherwise be harmful to the water resources of the District and affirmatively demonstrates that one or more of the following circumstances exists:

(a) The variance is essential to protect health or safety, or

(b) Compliance with the particular rule or order from which a variance is sought will require measures which, because of their extent or cost, cannot be accomplished within the anticipated duration of the shortage, or

(c) Alternative restrictions which achieve the same level of demand reduction as the restrictions from which a variance is sought are available and are binding and enforceable, or

(d) The applicant is a public or private utility that demonstrates that special circumstances exist which necessitate the issuance of a variance, or

(e) The applicant’s source of water includes an approved aquifer storage and recovery installation or a water reclamation project.

(3) Limiting Conditions – Variances granted shall be subject to the following conditions:

(a) The variance granted shall be the minimum necessary to alleviate the circumstance for which the variance was requested under subsection (2).

(b) All variances shall expire upon a declaration by the Board that a water shortage no longer exists or when a more restrictive water shortage declaration is made, unless the Board specifies that the variance shall be in effect for a longer period of time, provided however that variance conditions which require the applicant to modify water use facilities shall remain in full force and effect until such modifications have been completed. However, when a new application for variance is filed within seven working days of the effective date of a more restrictive water shortage declaration, the existing variance shall remain in effect until final agency action on the application.

(c) Variances granted under paragraph (2)(b) may prescribe a timetable for compliance with the restrictions from which a variance was sought.

(4) Applications for Variance – The application shall contain the following:

(a) The applicant’s name, address, telephone number and location of the property for which relief is requested.

(b) The specific rule, order, water shortage phase or restriction from which the applicant is requesting relief.

(c) A detailed statement of the facts which the applicant believes demonstrate that the request qualifies for a variance under subsection (2), including reports by qualified technical experts.

(d) A description of the relief desired.

(e) The period of time for which the variance is sought, including the reasons and facts in support thereof.

(f) The damage or harm resulting or which may result to the applicant from compliance with the rule or order.

(g) If the variance is sought under paragraph (2)(b), information identifying the restrictions which currently can be met, a description of the measures which would be necessary to meet all restrictions and the date when these measures could be completed.

(h) If the applicant is the owner or operator of a golf course whose need for a variance arises from the operational inability of its irrigation system or works to meet the front nine-back nine requirement in Chapter 40E-21, Part V, F.A.C., the applicant shall submit a map showing the proposed alternative division of the course in-half and an explanation of the applicant’s proposed irrigation scheme.

(i) For applications for variance from restrictions on irrigation, a general description of the irrigation system, including pump or water system output and irrigated area, and

(j) Any other information, the applicant believes is material.

(5) Procedures.

(a) Within ten working days after receipt of a complete application for variance, which contains the information listed in subsection 40E-21.275(4), F.A.C., the staff shall recommend to the Executive Director whether the application complies with the provisions of subsections (2) through (4). The recommendation shall be in writing and shall constitute proposed agency action. The District shall set forth in writing the grounds or basis for denial of the variance and inform the applicant of the right to a hearing on the denial of the application by filing a petition. A copy of the recommendation shall be forwarded to the applicant. Any petition for hearing on an application for variance shall be considered a petition for informal proceedings in accordance with subsection 40E-1.571(2), F.A.C.

(b) The Executive Director or his designee shall review the application and the staff recommendation. Applications which do not require immediate action or which do not comply with the provisions of subsections (2) through (4) may be deferred for Board action. Applications which require immediate action and which comply with the provisions of subsections (2) through (4) may be temporarily granted by the Executive Director or his designee. Temporary variances granted by the Executive Director or his designee shall be presented to the Board for concurrence, rejection or modification.

(c) The Board shall consider all deferred applications as well as those temporarily granted by the Executive Director or his designee, at its next regularly scheduled meeting. The Board may grant, or deny the deferred applications and may concur in, reject or modify those variances temporarily granted by the Executive Director or his designee. All Board action denying applications for variances shall be by written order and copies shall be furnished to the applicant and the appropriate law enforcement officials. An applicant whose variance has been granted shall be furnished an appropriate notice of water shortage variance and any attachments which shall be prominently displayed at the applicant’s place of use.

(d) The Board may revoke or modify a variance when it determines that the continued utilization of the variance is inconsistent with the objectives of the District.

(6) The variance under this rule is provided in addition to the variance and waiver procedures set forth in Rule 28-104, F.A.C., which implements Section 120.542, F.S.

Rulemaking Authority 120.54(5), 373.044, 373.113 FS. Law Implemented 120.54(5), 373.175, 373.246 FS. History–New 9-2-98, Amended 6-12-00.