62-41.303. Central Florida Water Initiative Area, Variances to the Uniform Rules

(1) Scope. Applicants may seek a variance from Rules 62-41.301 and 62-41.302, F.A.C., and the provisions of the Supplemental Applicant’s Handbook if there are unique circumstances or hydrogeological factors that make application of the uniform rules unrealistic or impractical. A variance under this rule is as defined in Section 120.52(21), F.S. Variances under this rule shall not be granted for any requirements relating to the Southern Water Use Caution Area or the Dover/Plant City Water Use Caution Area, provisions of which are incorporated by reference in Rule 62-41.305, F.A.C. Nothing in this rule shall preclude a petitioner from applying for variances or other relief mechanisms under other provisions of law.

(2) Delegation. The Department hereby delegates to the South Florida, Southwest Florida, and St. Johns River Water Management Districts the authority to grant or deny variances under this section to applicants/permittees within their district. At least 15 days prior to granting a request for variance, a district must notify the Executive Director of the other two Water Management Districts and the Director of the Department’s Office of Water Policy and Ecosystem Restoration that it intends to grant the variance.

(3) An applicant seeking a variance under Section 373.0465, F.S., from the provisions of Rule 62-41.301 or 62-41.302, F.A.C., or the provisions of the Supplemental Applicant’s Handbook must demonstrate that there are unique circumstances or hydrogeological factors that make application of the uniform rules unrealistic or impractical. For the purposes of this rule, unrealistic or impractical shall mean compliance with the rule will create a substantial hardship or would violate the principles of fairness. For purposes of this section, “substantial hardship” means a demonstrated economic, technological, legal, or other type of hardship to the person requesting the variance or waiver. For purposes of this section, “principles of fairness” are violated when the literal application of a rule affects a particular person in a manner significantly different from the way it affects other similarly situated persons who are subject to the rule.

(4) Applicants for a variance may not claim that compliance with another Department or District statute or rule justifies the need for a variance. Applicants may seek variances from those statutes or rule through the applicable variance procedures.

(5) The Districts shall only grant variances when the applicant demonstrates that it has achieved or will achieve the purpose of the underlying statute by other means.

(6) Petitions for variance must include the following information:

(a) A caption, which shall read:

Petition for Variance from Rule (Citation)

(b) The name, address, any e-mail address, telephone number, and any facsimile number of the petitioner, if the party is not represented by an attorney or a qualified representative;

(c) The name, address, e-mail address, telephone number, and any facsimile number of the attorney or qualified representative of the petitioner, if any;

(d) The applicable rule or portion of the rule or handbook;

(e) The citation to the statute the rule is implementing;

(f) The type of action requested;

(g) The specific facts that demonstrate there are unique circumstances or hydrogeological factors that make application of the uniform rules unrealistic or impractical;

(h) The reason why the variance requested would serve the purposes of the underlying statute; and

(i) A statement whether the variance is permanent or temporary. If the variance is temporary, the petition shall include the dates indicating the duration of the requested variance.

(7) The District shall review a petition for a variance under Section 373.0465(2)(d), F.S., within 30 days after receipt to determine if the application is complete. If the petition is incomplete, the District shall request additional information and cite the applicable paragraph or subparagraph in this rule upon which it is making such request. Within 30 days after receipt of such additional information, the District shall review the additional information and may request any other information needed to clarify the additional information or to answer new questions raised by, or directly related to, the additional information. If the petitioner asserts that any request for additional information is not authorized by law or by rule, the petitioner may direct the District to process the petition without the requested information. Upon the receipt of such direction, the District shall process the petition without the requested information.

(8) The District shall publish in the Florida Administrative Register a notice of availability of the intended agency action on the petition for a variance under Section 373.0465(2)(d), F.S. The petitioner shall publish notice of intended agency action on the petition once, at his own expense, in a newspaper of general circulation (as defined in Section 50.031, F.S.) in the county or counties in which its withdrawal is located.

(9) If granted, a variance will be issued to run concurrently with the corresponding permit.

(10) Renewals of variances shall be applied for and reviewed in the same manner as set forth in Rule 62-41.303, F.A.C.

Rulemaking Authority 373.043, 373.0465, 373.171 FS. Law Implemented 373.016, 373.019, 373.026, 373.036, 373.0363, 373.042, 373.0421, 373.0465, 373.171, 373.219, 373.223, 373.233, 373.229, 373.709 FS. History–New 6-21-21.