250 R.I. Code R. 250-RICR-150-10-6.51

Current through December 26, 2024

Section 250-RICR-150-10-6.51 - Variance Requests

A. Applicability - Applications for the approval of plans and specifications for an OWTS may include a request for a variance from the provisions of the Rules Establishing Minimum Standards Relating to Location, Design, Construction, and Maintenance of Onsite Wastewater Treatment Systems. Requests for variance will not be required for OWTS Applications for Alteration to a Structure where there will be no increase in wastewater flow or OWTS Applications for Repair.

B. Requests for variances shall be attested to by a Class II or Class III Licensed Designer.

C. Contents of Variance Request - Requests for variances shall be on forms approved by the Director. It is the applicant's responsibility to demonstrate by a preponderance of clear and scientifically valid evidence by means of a comprehensive analysis having a probative value that the requested variance(s) will not be contrary to the public health, the public interest or the environment. Applicants must comply with local ordinances; however, such compliance cannot be used to justify or support a variance request under these Rules.

1. The comprehensive analysis shall provide adequate scientific and technical evidence on how the proposed design will mitigate potential adverse impacts on the following:

a. Public health;

b. Any surface water drinking water supply or tributary thereto and any public or private drinking water well and any associated transmission lines that may be affected, including the cumulative impacts of the system to the surrounding area;

c. Any body of water including, but not limited to, impacts on groundwater or surface water quality and to the ability of the water body to support or maintain flora and fauna as well as other designated water uses;

d. Public use and enjoyment of any recreational resource; and

e. Surrounding persons or property as a potential cause of any public or private nuisance.

2. The comprehensive analysis shall include, but not be limited to:

a. An analysis of any limiting conditions of the site;

b. An analysis of the amount and characteristics of the wastewater discharged; and

c. An analysis of the ability of the site to accept, transmit and treat wastewater.

3. The variance request(s) shall be accompanied by a list identifying the names and addresses of the local building official and all property owners within two hundred feet (200') of any component of the proposed OWTS for which a variance(s) has been requested.

4. Nothing herein shall prevent the Director from requesting additional information deemed necessary.

5. For OWTS located within two hundred feet (200') of the inland edge of the coastal shoreline feature bordering a tidal water area (corresponding to the jurisdiction of the Rhode Island Coastal Resources Management Council), the variance request shall be accompanied by a Preliminary Determination from the Coastal Resources Management Council.

D. Compensatory Mitigation - Other elements of the applicant's system design (in which no variance is requested) may result in greater protection of the public health and the environment than is required by meeting the minimum standards of these Rules. In such case, the applicant may include how these elements of the system provide compensatory mitigation for the variance(s) requested as part of the comprehensive analysis required in § 6.51(C)(2) of this Part. Compensatory mitigation may be in the form of, but is not limited to: alternative or experimental technologies approved pursuant to § 6.41 of this Part provided such systems are not required by other Rules herein, greater setback distances than required in § 6.23 of this Part, greater separation distances to groundwater than required in § 6.33(E) of this Part, reductions in design flow, reductions in pollutant loading on neighboring properties, decreasing the loading rate per square foot of leachfield, and decreasing the linear loading rate.

E. Cumulative Impact Assessment - Any application for an OWTS proposed to be installed on a lot less than ten thousand (10,000) square feet in area which requires more than one (1) variance and which will be located within one hundred feet (100') of any public or private drinking water well will not be approved unless a Cumulative Impact Assessment of the variances is conducted by the applicant and submitted to the Department along with the variance request. The Cumulative Impact Assessment shall include, but not be limited to: a description of all abutting properties identifying the location of all OWTSs, watercourses, and private or public drinking water wells; a concise description of all variances granted in the permitting of these abutting OWTSs; and any additional information which the Director may deem appropriate.

F. Notification Requirements

1. Once the applicant's plans and specifications have been determined to be complete by the Department, the applicant shall notify the local municipal building official and all property owners within two hundred feet (200') of any component of the proposed OWTS of the pending application for an OWTS with variance(s). If a variance is requested from the minimum setback requirement to a public water supply well, public water line or a surface water reservoir including tributaries and tributary freshwater wetlands or subsurface drains directly discharging thereto, then the applicant shall also notify the applicable public water system entity or agency.

2. Exemptions from Notification Requirements

a. OWTS applications for Alteration to a Structure that include a request for a variance from the provisions of these Rules are exempt from the notification requirements in § 6.51(F) of this Part.

b. The Director may waive the notification requirements in § 6.51(F) of this Part if the variance request is limited to a variance from a provision of these Rules specifying horizontal setbacks from a feature on the applicant's property only.

c. The Director may waive the notification requirements in § 6.51(F) of this Part if, in the opinion of the Director, the variance request will be denied based on the information submitted, or lack thereof, or based on the standards in § 6.52(B)(2) of this Part.

3. Each notice shall include:

a. A copy of the Variance Request Form(s) submitted to the OWTS Program;

b. A cover letter conforming to a form to be provided by the Director, which shall include at least the following information:

(1) The application number;

(2) A statement of the purpose of the notification;

(3) A certificate of service; and

(4) A statement advising the recipient that the recipient may, within twenty (20) days of the date specified in the certificate of service, provide the Director with written comments or information bearing upon the subject application; and

c. Reduced-scale site plans identical to those submitted to the DEM OWTS Program.

4. All notices shall be forwarded by certified mail, return receipt requested. The applicant shall clearly mark each return receipt with the application number and the words "Variance Request."

5. When all certified receipts have been returned to the applicant, copies of each cover letter, accompanied by the appropriate certified receipt, shall be filed with the OWTS Program along with a letter requesting that the application be submitted to the variance review process for final review and determination.

6. If a correctly addressed, certified notice is returned to the applicant, the applicant may submit the returned envelope and certified receipt, unopened, along with the other return receipts as proof of the applicant's good faith attempt to serve the notice.

G. Redesign Applications - For redesign applications submitted to the Department, any variance request previously approved by the Department shall remain valid, provided that the Department determines that either:

1. The circumstances and facts regarding the variance are the same as the facts under which the original variance was granted; or

2. The variance in the redesign represents no greater deviation from the Rules than the original variance.

250 R.I. Code R. 250-RICR-150-10-6.51

Amended effective 11/25/2018
Amended effective 12/28/2021
Amended effective 7/1/2022