§ 119.6. Procedure for exemptions or variance from the prohibition of the nonessential uses of water.
(a) If compliance with the prohibition of nonessential use of water would result in extraordinary hardship upon a water user, the water user may apply for an exemption or variance, which would expire with the termination of the drought emergency proclamantion, unless otherwise specified in the exemption or variance.
(b) If a public water supply agency can demonstrate that compliance with the prohibition of nonessential use of water is unnecessary due to adequate water supply and it is following a drought contingency plan approved by the Commonwealth Drought Coordinator in accordance with § 118.4 (relating to contingency plans—public water supply agencies), the public water supply agency may apply for an exemption throughout all or portions of its service area. In reviewing the applications, the Commonwealth Drought Coordinator shall give primary consideration to any impacts that approval of the application may have on the overall resources of the watershed or river basin and on the ability of law enforcement agencies locally or throughout the designated drought emergency area to enforce these or other emergency regulations. This consideration alone maybe cause for denial.
(c) For purposes of this section, extraordinary hardship means a permanent damage to property, including perishable raw or processed product, or other personal or economic loss which is substantially more severe than the sacrifices borne by other water users subject to the prohibition of nonessential use of water.
(d) A water user or public water supply agency may apply for an exemption or variance under the following procedures:
(1) The water user or public water supply agency shall submit a written application with full documentation supporting the need for the requested relief to:
Commonwealth Drought Coordinator c/o Department of Environmental Protection Post Office Box 8555 Harrisburg, Pennsylvania 17105-8555
(2) The application from a water user shall contain information specifying:
(i) The nature of the hardship claimed and the reason for the requested exemption or variance.
(ii) The efforts taken by the water user to conserve water and the extent to which water use may be reduced by the applicant without extraordinary hardship.
(3) The application from a public water supply agency shall contain information specifying:
(i) The nature of the hardship claimed and the reason for the requested exemption or variance.
(ii) The adequacy of the supply.
(iii) Evidence of compliance with an approved drought contingency plan.
(4) The Commonwealth Drought Coordinator or a designee will review the application in consultation with other appropriate Commonwealth agencies, and may request the applicant to provide within a reasonable time additional information as necessary to review the application.
(5) The Commonwealth Drought Coordinator, or a designee, is authorized to render a decision regarding applications received for exemption or variance. The Commonwealth Drought Coordinator or a designee will provide the applicant notice in writing of the decision and the reasons for the decision. When possible, the Commonwealth Drought Coordinator or a designee will provide a written decision within 7 working days, or if perishable products are involved, within 1 working day, of submission of an application or will request additional information as necessary to review the application. When appropriate, the Commonwealth Drought Coordinator may issue a Statewide exemption or variance to similarly situated water users. A notice of the decision will be published in the Pennsylvania Bulletin. Unless appealed under this section, the decision of the Commonwealth Drought Coordinator or a designee shall be considered a final action on the application.
(6) A person aggrieved by a decision of the Commonwealth Drought Coordinator or a designee may, within 30 days of written notice of the decision or publication of notice of the decision in the Pennsylvania Bulletin, appeal the decision to PEMA.
(7) An appeal from an initial decision of the Commonwealth Drought Coordinator or a designee will not act as an automatic supersedeas, but, upon cause shown and when the circumstances require it, PEMA will have the power to grant a supersedeas.
(8) When an initial decision is appealed, PEMA will provide the applicant with an opportunity for a hearing not later than 7 business days after PEMA has received the appeal request. PEMA may appoint a hearing examiner, who may be an administrative law judge of the Pennsylvania Public Utility Commission. Hearings may be held telephonically.
(9) The hearing examiner will provide the record of the hearing, if any, and a recommendation to PEMA for review and adoption.
(10) PEMA will notify the applicant in writing of its final decision and the reasons for the decision regarding the appeal within 2 business days after PEMA has received a written recommendation from the hearing examiner.
(e) An exemption or variance will only be granted to an applicant to the extent necessary to relieve extraordinary hardship and will be conditioned upon compliance with all reasonable conservation measures required by this chapter or the variance or exemption.
(f) An exemption or variance may be modified or rescinded by the Commonwealth Drought Coordinator if public health, safety and welfare require further reduction in water use.
(g) An exemption or variance granted to a water user for a specific property, purpose or person is not transferable to another property, purpose or water user without prior written approval from the Commonwealth Drought Coordinator.
Source The provisions of this § 119.6 adopted April 26, 1985, effective April 26, 1985, 15 Pa.B. 1737; amended May 17, 1985, effective May 10, 1985, 15 Pa.B. 1825; suspended November 29, 1985, effective November 1, 1985, 15 Pa.B. 4278; amended August 9, 1991, effective August 10, 1991, 21 Pa.B. 3495; amended July 6, 2001, effective July 7, 2001, 31 Pa.B. 3529. Immediately preceding text appears at serial pages (229898) to (229900).
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