Variances from Permitting Standards-Unreasonable, Unfair, and Unintended Results
Variances under Section 120.542 of the Florida Statutes
Section 120.542 of the Florida Statutes is part of the Florida Administrative Procedures Act. The Florida Legislature declared in section 120.542 that "strict application of uniformly applicable rule requirements can lead to unreasonable, unfair, and unintended results in particular instances. The Legislature finds that it is appropriate in such cases to adopt a procedure for agencies to provide relief to persons subject to regulation." The procedure is set forth in section 120.542 and Rule 28-104 of the Florida Administrative Code. Variances and waivers from rule requirements are be granted when the person subject to the rule demonstrates that the purpose of the statute underlying the rule will be or has been achieved by other means by the person and when application of a rule would create a substantial hardship or would violate principles of fairness. "Substantial hardship" means a demonstrated economic, technological, legal, or other type of hardship to the person requesting the variance or waiver. "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 from which a variance is sought.
Section 120.542 covers a broad range of governmental regulations in Florida, and includes those of the South Florida Water Management District. For example, a person affected by permitting standards, permit conditions, or water quality standards associated with an environmental resource permit may be able to seek a variance from the District under provisions of section 120.542 by filing a petition with the District. Secion 120.542 sets forth time frames in which the District is to review the petition, applying the statutory criteria of substantial hardship and principals of fairness and take final agency action
granting or denying the petition.
Variances from Specified Review Criteria authorized by Rule 40E-0.113 (a SFWMD Rule)
While the regulations and Basis of Review for the District set forth various standards and criteria for District permits, the District regulations also provide the District is authorized to grant a variance from permitting standards, permit conditions, or water quality tandards associated with an environmental resource permit if certain conditions are met. Rule 40E-0.113 states that the Governing Board of the District is authorized to grant a variance from the provisions of Section 373.414 of the Florida Statutes (entitled "Additional
criteria for activities in surface waters and wetlands"), section 40E-4.301(1)(e) (entitled "Conditions for Issuance of Permits") or section 40E-4.302 (entitled "Additional Conditions for Issuance of Permits"). A person seeking a variance under rule 40E-0.113 is required to demonstrate that any hardship asserted as a basis of the need for a variance is peculiar to the affected property and not self-imposed.
Rule 40E-0.113 also sets forth the information which is to be included in a petition for variance and the standards for granting the petition; for example, the social, economic and environmental impacts of granting or denying the variance. District staff must review the petition within a reasonable period of time, and take final agency action granting or denying the petition.
The foregoing discussion is in summary form, and does not, and is not intended to, discuss all of the statutes, regulations and court opinions which affect matters included in the article. It is not intended as legal advice.