250 R.I. Code R. 250-RICR-150-10-6.52

Current through December 26, 2024

Section 250-RICR-150-10-6.52 - Variance Review Process

A. Preliminary Review and Recommendation - All variance requests shall be reviewed by the Department for the purpose of determining whether such variance(s) would be contrary to the public health, the public interest or the environment. In reviewing the applicant's variance requests, the Department may consult with other experts, whether employed by the Department or not. As part of the review of any variance request(s), the Department shall consider:

1. All evidence submitted by the applicant, the local municipal building official and the notified property owners bearing upon the subject application;

2. The number and extent of the limiting conditions at the site and surrounding area; and

3. Whether the site characteristics are less than optimum for wastewater treatment and dispersal.

B. Variance Review Standards

1. Approval - A variance request from the minimum standards set forth in these Rules shall be approved if it is determined that such a variance(s) will not be contrary to the public health, the public interest, or environmental quality.

2. Denial - A variance request from the minimum standards set forth in these Rules shall be denied when:

a. The applicant has failed to provide clear, accurate, and substantive information to enable the Department to determine that the requested variance will not be contrary to the public health, the public interest, or environmental quality;

b. The evidence fails to demonstrate that the same degree of environmental protection provided under these Rules can be achieved without strict application of the provision for which the variance has been requested;

c. The evidence demonstrates that the OWTS will not function as proposed in the application;

d. The evidence indicates that the approval of the OWTS would otherwise be contrary to the public health, the public interest, or environmental quality; or

e. The variance request is for one (1) of the following:

(1) The variance request is for an action that is prohibited in § 6.9 of this Part, excluding the prohibition regarding holding tanks in § 6.9(O) of this Part;

(2) The variance request is from the requirements of § 6.15(B) of this Part on a site located in the Salt Pond or Narrow River Critical Resource Areas unless the applicant demonstrates that a net reduction in overall, long-term nitrogen loading to the watershed will result;

(3) The variance request resulted from the applicant subdividing the property after December 31, 1995 unless the applicant demonstrates that the reason for the variance requested is not the result of action by the applicant, or prior owners of the property;

(4) The variance request is from the requirement that soil and seasonal high groundwater table data must have been determined within the past five (5) years;

(5) There is a public wastewater system reasonably accessible to the structure to be served by the OWTS;

(6) The variance request is for new lots under ten thousand (10,000) square feet platted or otherwise created after June 18, 1992 unless the applicant demonstrates that the reason for the variance requested is not the result of action by the applicant, or prior owners of the property;

(7) The variance request is for less than the eighty foot (80') minimum setback distance from a private drinking water well in § 6.23(E) of this Part, Note 3;

(8) The variance request is from the two hundred foot (200') public well setback requirement for a drilled rock, driven, or dug well in § 6.23(E) of this Part or from the four hundred foot (400') public well setback from a gravel packed or gravel developed well in § 6.23(E) of this Part. Such a variance request may be approved if either of the following occurs:

(AA) If the public well is not on the same property that is subject to the OWTS Application, the applicant provides documentation that the well owner has an approved variance from the Rhode Island Department of Health for an inner protective zone that does not include the location of the proposed OWTS; or

(BB) If the public well is on the same property that is subject to the OWTS Application, the applicant provides documentation that the Rhode Island Department of Health has approved of the requested activity;

(9) The variance request is for a depth to groundwater from original ground surface of less than twelve inches (12") or for a depth to a restrictive layer or bedrock of less than thirty-six inches (36");

(10) The variance request is from the nitrogen reducing technology requirements in the Salt Pond and Narrow River Critical Resource Areas in § 6.43(B) of this Part; or

(11) The variance request is from the requirements in § 6.45 of this Part, "Nitrogen Loading in Areas of Onsite Drinking Water Wells."

3. Terms and Conditions - The variance decision may contain such terms and conditions as the Director deems necessary to protect the public interest, the public health, or the environment.

C. Recommended Determination - Upon completion of their review, the OWTS Program Staff shall prepare a written recommendation of approval or denial of the variance request. The review shall identify the factors considered in the review process, specify the bases for their recommendation, and identify any suggested conditions for approval.

D. Final Determination - Upon review of the recommendation submitted in accordance with § 6.52(C) of this Part, the Director shall render a final written decision approving or denying the requested variance(s). In arriving at a final decision, the Director may:

1. Adopt the recommendation, with or without additional written comments or conditions;

2. Reject the recommendation; in which case the Director shall render a written decision specifying the bases for the rejection; or

3. Remand the matter back to the OWTS Program Staff for further review and consideration of certain specified factors.

250 R.I. Code R. 250-RICR-150-10-6.52

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