2010 Georgia Code
TITLE 12 - CONSERVATION AND NATURAL RESOURCES
CHAPTER 5 - WATER RESOURCES
ARTICLE 2 - CONTROL OF WATER POLLUTION AND SURFACE-WATER USE
§ 12-5-31 - Permits for withdrawal, diversion, or impoundment of surface waters generally and for farm uses; coordination with water plans; restrictions; monitoring, recording, and reporting water withdrawals
. Permits for withdrawal, diversion, or impoundment of surface waters generally and for farm uses; coordination with water plans; restrictions; monitoring, recording, and reporting water withdrawals
(a)(1) No person shall make any withdrawal, diversion, or impoundment of any of the surface waters of the state for whatever use without obtaining a permit from the director; provided, however, that no permit shall be required for:
(A) Any such withdrawal which does not involve more than 100,000 gallons per day on a monthly average;
(B) Any such diversion which does not reduce the flow of the surface waters at the point where the watercourse, prior to diversion, leaves the person's or persons' property or properties on which the diversion occurred, by more than 100,000 gallons per day on a monthly average;
(C) Any such diversion accomplished as part of construction for transportation purposes which does not reduce the flow of surface waters in the diverted watercourse by more than 150,000 gallons per day on a monthly average; or
(D) Any such impoundment which does not reduce the flow of the surface waters immediately downstream of the impoundment by more than 100,000 gallons per day on a monthly average.
(2) No permit shall be required for a reduction of flow of surface waters during the period of construction of an impoundment, including the initial filling of the impoundment, or for farm ponds or farm impoundments constructed and managed for the sole purpose of fish, wildlife, recreation, or other farm uses.
(3) Notwithstanding any other provision of this Code section to the contrary, a permit for the withdrawal or diversion of surface waters for farm uses shall be issued by the director to any person when the applicant submits an application which provides reasonable proof that the applicant's farm use of surface waters occurred prior to July 1, 1988, and when any such application is submitted prior to July 1, 1991. If submitted prior to July 1, 1991, an application for a permit to be issued based upon farm uses of surface waters occurring prior to July 1, 1988, shall be granted for the withdrawal or diversion of surface waters at a rate of withdrawal or diversion equal to the greater of the operating capacity in place for withdrawal or diversion on July 1, 1988, or, when measured in gallons per day on a monthly average for a calendar year, the greatest withdrawal or diversion capacity during the five-year period immediately preceding July 1, 1988. If submitted after July 1, 1991, or, regardless of when submitted, if it is based upon a withdrawal or diversion of surface waters for farm uses occurring or proposed to occur on or after July 1, 1988, an application shall be subject to evaluation and classification pursuant to subsections (e), (f), and (g) of this Code section, but a permit based upon such evaluation and classification shall be issued to ensure the applicant's right to a reasonable use of such surface waters. Any permit issued pursuant to this paragraph shall be conditioned upon the requirement that the permittee shall provide, on forms prescribed by the director, information relating to a general description of the lands and number of acres subject to irrigation and the permit; a description of the general type of irrigation system used; the source of withdrawal water such as river, stream, or impoundment; and pump information, including rated capacity, pump location, and power information. Applications under this paragraph submitted on or after April 20, 2006, for farm use within the Flint River basin shall be assessed a nonrefundable application fee in the amount of $250.00 per application. Permits applied for under this paragraph on or after April 20, 2006, for farm use in the Flint River basin shall have a term of 25 years and shall be renewed at the original permitted capacity unless an evaluation of the water supply by the division indicates that renewal at the original capacity would have unreasonable adverse effects upon other water uses. The division may renew the original permit at a lower capacity, but such capacity shall be based on the reasonable use of the permittee and evaluation of the resource. All permits issued under this paragraph may be transferred or assigned to subsequent owners of the lands which are the subject of such permit; provided, however, that the division shall receive written notice of any such transfer or assignment. Any modification in the use or capacity conditions contained in the permit or in the lands which are the subject of such permit shall require the permittee to submit an application for review and approval by the director consistent with this Code section. Nothing in this paragraph shall be construed as a repeal or modification of Code Section 12-5-46
(b) For purposes of this Code section, the term:
(1) "Director" means the director of the Environmental Protection Division of the Department of Natural Resources, or his designee.
(2) "Diversion" means a turning aside or altering of the natural course of surface waters.
(3) "Farm uses" means irrigation of any land used for general farming, forage, aquaculture, pasture, turf production, orchards, or tree and ornamental nurseries; provisions of water supply for farm animals, poultry farming, or any other activity conducted in the course of a farming operation. Farm uses shall also include the processing of perishable agricultural products and the irrigation of recreational turf, except in the Chattahoochee River watershed upstream from Peachtree Creek, where irrigation of recreational turf shall not be considered a farm use.
(4) "Impoundment" means the storing or retaining of surface water by whatever method or means.
(5) "Surface water(s) of the state" or "surface water(s)" means any and all rivers, streams, creeks, branches, lakes, reservoirs, ponds, drainage systems, springs producing in excess of 100,000 gallons per day, and all other bodies of surface water, natural or artificial, lying within or forming a part of the boundaries of the state which are not entirely confined and retained completely upon the property of a single individual, partnership, or corporation.
(6) "Withdrawal" means the taking away of surface water from its natural course.
(c) To obtain a permit pursuant to this Code section, the applicant must establish that the proposed withdrawal, diversion, or impoundment of surface waters is consistent with this article.
(d) All permit applications filed with the director under this Code section shall contain the name and address of the applicant or, in the case of a corporation, the address of its principal business office in this state; the date of filing; the source of the water supply; the quantity of water applied for; the use to be made of the water and any limitation thereon; the place of use; the location of the withdrawal, diversion, or impoundment; for those permits which indicate an increase in water usage, except for permits solely for agricultural use, a water conservation plan approved by the director and prepared based on guidelines issued by the director; and such other information as the director may deem necessary; provided, however, that any required information already provided the director by the applicant in the context of prior dealings with the division, which information is still correct, may be incorporated into the application by adequate reference to same. The director shall collect and disseminate such technical information as the director deems appropriate to assist applicants in the preparation of water conservation plans.
(e) Subject to subsection (g) of this Code section, the Board of Natural Resources shall by rule or regulation establish a reasonable system of classification for application in situations involving competing uses, existing or proposed, for a supply of available surface waters. Such classifications shall be based upon but not necessarily limited to the following factors:
(1) The number of persons using the particular water source and the object, extent, and necessity of their respective withdrawals, diversions, or impoundments;
(2) The nature and size of the water source;
(3) The physical and chemical nature of any impairment of the water source adversely affecting its availability or fitness for other water uses;
(4) The probable severity and duration of such impairment under foreseeable conditions;
(5) The injury to public health, safety, or welfare which would result if such impairment were not prevented or abated;
(6) The kinds of businesses or activities to which the various uses are related and the economic consequences;
(7) The importance and necessity of the uses, including farm uses, claimed by permit applicants and the extent of any injury or detriment caused or expected to be caused to other water uses;
(8) Diversion from or reduction of flows in other watercourses in accordance with Article 8 of this chapter or any state-wide water plan provided pursuant thereto;
(9) The prior investments of any person in lands, and plans for the usage of water in connection with such lands which plans have been submitted to the director within a reasonable time after July 1, 1977, or, if for farm uses, after July 1, 1988; provided, however, that the granting of such permit shall not have unreasonably adverse effects upon other water uses in the area, including potential as well as present use; and
(10) The varying circumstances of each case.
(f) In the event two or more competing applicants or users qualify equally under subsection (e) of this Code section, the director is authorized to grant permits to applicants or modify the existing permits of users for use of specified quantities of surface waters on a prorated or other reasonable basis in those situations where such action is feasible; provided, however, the director shall give preference to an existing use over an initial application.
(g) The division shall take into consideration the extent to which any withdrawals, diversions, or impoundments are reasonably necessary, in the judgment of the director, to meet the applicant's needs and shall grant a permit which shall meet those reasonable needs; provided, however, that the granting of such permit shall not have unreasonably adverse effects upon other water uses in the area, including but not limited to public use, farm use, and potential as well as present use; and provided, further, that the director shall grant a permit to any permit applicant who on July 1, 1977, has outstanding indebtedness in the form of revenue certificates or general obligation bonds which are being amortized through the sale of surface water, the permitted quantity of which shall be at least in an amount consistent with that quantity for which the revenue certificates or general obligation bonds were issued.
(h) Except for applications filed pursuant to paragraph (3) of subsection (a) of this Code section, permits may be granted for any period of time not less than ten years, unless the applicant requests a shorter period of time, nor more than 50 years. The director may base the duration of such permits on any reasonable system of classification based upon but not necessarily limited to such factors as source of supply and type of use. In evaluating any application for a permit for the use of water, the director shall evaluate the condition of the water supply to assure that the supply is adequate to meet the multiple needs of the citizens of the state as can reasonably be projected for the term of the permit and ensure that the issuance of such permit is based upon water development and conservation plans for the applicant and for the region in accordance with Article 8 of this chapter. Such water development and conservation plans for the applicant and for the region shall promote the conservation and reuse of water within the state, guard against a shortage of water within the state, promote the efficient use of the water resource, and be consistent with the public welfare of the state, in accordance with Article 8 of this chapter. The board shall promulgate regulations for implementation of this subsection, including provisions for review of such permits periodically or upon a substantial reduction in average annual volume of the water resource which adversely affects water supplies to determine that the permittee continues in compliance with the conditions of the permit and that the plan continues to meet the overall supply requirements for the term of the permit. Regional water plans shall be developed in accordance with Article 8 of this chapter. Such regional plans shall include water development, conservation, and sustainable use and shall be based upon detailed scientific analysis of the water source, the projected future condition of the resource, current demand, and estimated future demands on the resource, in accordance with Article 8 of this chapter.
(i) A permittee may seek modification of any of the terms of an issued permit. The director may approve the proposed modification if the permittee establishes that a change in conditions has resulted in a need by the permittee of more water than is allowed under the existing permit, or that the proposed modification would result in a more efficient utilization of water than is possible under the existing permit, or that a proposed change in conditions would result in a need by the permittee of more water than is allowed under the existing permit. Any such modification shall be consistent with the health and safety of the citizens of this state and with this article. In any administrative review proceeding resulting from an action of the director under this subsection, the burden of proof in establishing that the requisite criteria have been met shall be upon the person seeking such modification.
(j) A permittee may seek renewal of a permit issued pursuant to this Code section from the director at any time within six months prior to the date of expiration of the permit. Except as otherwise specified in this Code section, all permit renewal applications shall be treated in the same manner as the initial permit application.
(k) The director may revoke, suspend, or modify a permit issued pursuant to this Code section as follows:
(1) For any material false statement in an application for a permit to initiate, modify, or continue a use of surface waters, or for any material false statement in any report or statement of fact required of the permittee pursuant to this Code section or pursuant to the conditions contained in a permit granted under this Code section, the director may revoke the user's permit, in whole or in part, permanently or temporarily;
(2) For any willful violation of the conditions of a permit granted pursuant to this Code section, the director may revoke the user's permit, in whole or in part, permanently or temporarily;
(3) For violation of any provision of this Code section, the director may revoke the permit, in whole or in part, for a period not to exceed one year;
(4) For nonuse of the water supply (or a significant portion thereof) allowed by the permit for a period of two consecutive years or more, the director may revoke the permit permanently, in whole or in part, unless the permittee can reasonably demonstrate that his nonuse was due to extreme hardship caused by factors beyond his control, except that this paragraph shall not apply to farm use permits issued pursuant to paragraph (3) of subsection (a) of this Code section after initial use has commenced;
(5) The director may revoke a permit permanently, in whole or in part, with the written consent of the permittee;
(6) The director may suspend or modify a permit, except farm use permits, if he should determine through inspection, investigation, or otherwise that the quantity of water allowed under the permit is greater than that needed by the permittee for the particular use upon which the application for permit was based or would prevent other applicants from reasonable use of surface waters, including farm uses;
(6.1) The director may permanently revoke any permit under this Code section for farm use within the Flint River Basin applied for on or after April 20, 2006, if initial use for the purpose indicated on the permit application, as measured by a flow meter approved by the State Soil and Water Conservation Commission, has not commenced within two years of the date of issuance of the permit unless the permittee can reasonably demonstrate that his or her nonuse was due to financial hardship or circumstances beyond his or her control;
(7) The director may suspend or modify a farm use permit if he should determine through inspection, investigation, or otherwise that the quantity of water allowed under the permit would prevent other applicants from reasonable use of surface waters for farm use; and
(8) Consistent with the considerations set forth in subsection (g) of this Code section, the director may revoke, suspend, or modify a permit for any other good cause consistent with the health and safety of the citizens of this state and with this article.
In the event of modification, suspension, or revocation of a permit, the director shall serve written notice of such action on the permit holder and shall set forth in such notice the reason for such action.
(l) Emergency period of water shortage:
(1) Whenever it clearly appears to the director from specific facts shown by affidavits of residents of the affected area of this state that an emergency period of water shortage exists within such area, so as to place in jeopardy the health or safety of the citizens of such area or to threaten serious harm to the water resources of the area, he may by emergency order impose such restrictions on one or more permits previously issued pursuant to this Code section as may be necessary to protect adequately such citizens or water resources; provided, however, such order shall not be issued until an effort has been made to give written notice of the proposed action by certified mail or statutory overnight delivery to the permittee or permittees to be affected. Such written notice shall allow such permittee or permittees five days from the date of mailing of the notice to appear before the director in opposition to the proposed action. The director may impose such restrictions based upon any reasonable system of classification established by the Board of Natural Resources through rule or regulation. Such system of classification shall be based upon but not necessarily limited to those factors set forth in subsection (e) of this Code section;
(2) The director shall specify in such order any change in the conditions of the permit, any suspension of the permit, or any other restriction on withdrawal, diversion, or impoundment of surface waters for the duration of the emergency water shortage and shall serve same on the person by hand delivery or certified mail or statutory overnight delivery. Except as to farm uses, any such change, suspension, or other restriction shall be effective immediately upon receipt of such order by the permittee, his agent for service of process, or any agent or employee of the permittee who receives the notification at the permittee's principal place of business in the state. Any permittee, other than a farm use permittee, to whom such order is directed shall comply therewith immediately. Upon application to a hearing officer appointed by the Board of Natural Resources of this state, a permittee, including a farm use permittee, shall be afforded a hearing within 20 days of receipt of such notice by the hearing examiner in accordance with subsection (c) of Code Section 12-2-2
. Farm use permittees may continue to make use of water to their permitted capacity during the appeal process, but failure to timely request a hearing in accordance with subsection (c) of Code Section 12-2-2
shall waive such right;
(3) During emergency periods of water shortage, the director shall give first priority to providing water for human consumption and second priority to farm use;
(4) The importance and necessity of water for industrial purposes are in no way modified or diminished by this Code section;
(4.1) The use of surface water by any permanent facility car wash shall be deemed not to be outdoor water use for purposes of any outdoor watering restrictions if the facility:
(A) Is connected to a sanitary sewer system of a political subdivision or local government authority or recycles used wash water; and
(B) Is certified by the division as meeting or exceeding applicable best management practices for car washing facilities, which the Board of Natural Resources shall provide by rules and regulations not later than October 1, 2008. Such certification shall expire annually and may be issued or renewed upon compliance with such best management practices and payment of a $50.00 fee to the division. The provisions of this subparagraph shall apply on and after the effective date of such board rules and regulations;
(4.2) The use of surface water for any swimming pool shall be deemed not to be outdoor water use for purposes of any outdoor watering restrictions if failure to maintain the swimming pool would create unsafe, unsanitary, or unhealthy conditions affecting the public health or welfare; and
(5) Upon expiration of the emergency period of water shortage, as determined by the director, the director shall immediately notify each affected permittee, in writing, of such expiration, and the permittees shall thereafter be authorized to operate under the permit as issued prior to the emergency period of water shortage.
(m) For all permits, including without limitation farm use permits, issued under this Code section, whenever required to carry out the objectives of this Code section, including but not limited to determining whether or not any person is in violation of any provision of this Code section or any rule or regulation promulgated pursuant to this Code section; encouraging or ensuring compliance with any provision of this Code section or any rule or regulation promulgated pursuant to this Code section; determining whether or not any person is in violation of any permit condition; or establishing a data bank on the usage of surface waters in a particular area or areas of this state, the director may by order, permit, or otherwise, in writing, require any person holding a permit under this Code section, or any other person who the director reasonably believes is withdrawing, diverting, or impounding surface waters in violation of the permitting requirements of this Code section, to:
(1) Establish and maintain records;
(2) Make reports;
(3) Install, use, and maintain monitoring equipment or methods; and
(4) Provide such other information as the director may reasonably require.
Notwithstanding the foregoing provisions of this subsection, any demand for such information by the director, which information has already been provided to the director by such person in the context of prior dealings with the division, and which is still correct, may be satisfied by adequate reference to same.
(m.1)(1) The State Soil and Water Conservation Commission shall have the duty of implementing a program of measuring farm uses of water in order to obtain clear and accurate information on the patterns and amounts of such use, which information is essential to proper management of water resources by the state and useful to farmers for improving the efficiency and effectiveness of their use of water, meeting the requirements of subsection (m) of this Code section, and improving water conservation. Accordingly, the State Soil and Water Conservation Commission shall on behalf of the state purchase, install, operate, and maintain water-measuring devices for farm uses that are required by this Code section to have permits. As used in this paragraph, the term "operate" shall include reading the water-measuring device, compiling data, and reporting findings.
(2) For purposes of this subsection, the State Soil and Water Conservation Commission:
(A) May conduct its duties with commission staff and may contract with other persons to conduct any of its duties;
(B) May receive and use state appropriations, gifts, grants, or other sources of funding to carry out its duties;
(C) In consultation with the director, shall develop a priority system for installation of water-measuring devices for farm uses that have permits as of July 1, 2003. The commission shall, provided that adequate funding is received, install and commence operation and maintenance of water-measuring devices for all such farm uses by July 1, 2009; provided, however, that the commission shall not install a water-measuring device on any irrigation system for such a farm use if such irrigation system is equipped with a meter as of July 1, 2003, and such meter is determined by the commission to be properly installed and operable, but any subsequent replacement or maintenance of such an irrigation system that necessitates replacement of such meter shall necessitate installation of a water-measuring device by the commission;
(D) May charge any permittee the commission's reasonable costs for purchase and installation of a water-measuring device for any farm use permit issued by the director after July 1, 2003; however, for permit applications submitted to the division prior to December 31, 2002, no charge shall be made for such costs; and
(E) Shall issue an annual progress report on the status of water-measuring device installation.
(3) Any person who desires to commence a farm use for which a permit is issued after July 1, 2003, shall not commence such use prior to the installation of a water-measuring device by the commission.
(4) Subject to the provisions of subparagraph (C) of paragraph (2) of this subsection, after July 1, 2009, no one shall use water for a farm use required to have a permit under this Code section without having a water-measuring device in operation that has been installed by the commission.
(5) Employees or agents of the commission are authorized to enter upon private property at reasonable times to conduct the duties of the commission under this subsection.
(6) Any reports of amounts of use for recreational purposes under this Code section shall be compiled separately from amounts reported for all other farm uses.
(n) In the consideration of applications for permits which if granted would authorize the withdrawal and transfer of surface waters across natural basins, the director shall be bound by any factors related thereto under Article 8 of this chapter or any state-wide water plan provided pursuant thereto and the following requirements:
(1) The director shall give due consideration to competing existing uses and applications for permits which would not involve interbasin transfers of surface water and, subject to subsection (e) of this Code section, shall endeavor to allocate a reasonable supply of surface waters to such users and applicants; and
(2) The director shall provide a press release regarding the proposed issuance of all permits authorizing such interbasin transfer of surface waters to newspapers of general circulation in all areas of the state which would be affected by such issuance. The press release shall be provided at least seven days before the issuance of these permits. If the director should determine that sufficient public interest warrants a public hearing on the issuance of these permits, he or she shall cause such a hearing to be held somewhere in the area affected prior to the issuance of these permits.
(o)(1) Except as otherwise provided in subsection (l) of this Code section for emergency orders, any person who is aggrieved or adversely affected by any order or action of the director pursuant to this Code section shall, upon petition within 30 days after the issuance of such order or the taking of such action, have a right to a hearing before an administrative law judge appointed by the Board of Natural Resources. The hearing before the administrative law judge shall be conducted in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," and the rules and regulations adopted by the board pursuant thereto. Any administrative law judge so appointed by the board shall fully meet and qualify as to all applicable conflict of interest requirements provided for in Section 304(h)(2)(D) of the Federal Water Pollution Control Act of 1972, as amended, and the rules, regulations, and guidelines promulgated thereunder. The decision of the administrative law judge shall constitute the final decision of the board. Any party to the hearing, including the director, shall have the right of judicial review thereof in accordance with Chapter 13 of Title 50, including the right to seek judicial review in the superior court of the county of the applicant's or permittee's residence.
(2) Persons are "aggrieved or adversely affected" where the challenged action has caused or will cause them injury in fact and where the injury is to an interest within the zone of interests to be protected or regulated by the statutes that the director is empowered to administer and enforce. In the event the director asserts in response to the petition before the administrative law judge that the petitioner is not aggrieved or adversely affected, the administrative law judge shall take evidence and hear arguments on this issue and thereafter make a ruling on this issue before continuing with the hearing. The burden of going forward with evidence on this issue shall rest with the petitioner.
(p) In addition to the other provisions of this Code section, there shall be established three categories of farm use surface water withdrawal permits: active, inactive, and unused. The rules and regulations implementing this subsection shall provide without limitation for the following:
(1) An active farm use surface water withdrawal permit means one that has been acted upon and used for allowable purposes;
(2) An inactive farm use surface water withdrawal permit means one where the permit holder has requested inactive status in order to retain ownership of the permit for possible future use or reuse. Inactive permits shall be retained by the permit holder without modification;
(3) An unused farm use surface water withdrawal permit means one that has never been used for allowable purposes. Unused permits expire after two years unless changed to active or inactive status by notification to the director. Unused permits shall not be transferred or assigned to subsequent owners of the lands as provided in paragraph (3) of subsection (a) of this Code section;
(4) An inactive farm use surface water withdrawal permit shall be reclassified to an active permit when the permit holder has given the director 60 days' written notice and paid any applicable fees in accordance with paragraph (3) of subsection (a) of this Code section; and
(5) The director shall, via certified mail, return receipt requested, contact, or cause to be contacted, any person who holds a permit that the director has determined is unused. The notification shall include the permit identification and information regarding the classifications and procedures for changing classifications. The permit holder shall have 120 days to respond after which the director shall issue a second notice via certified mail, return receipt requested. Two years after the date on which the director first notified the permit holder via certified mail, return receipt requested, of the unused status determination of the permit, the director shall revoke the permit if the permit holder has not requested that the unused permit be reclassified as inactive or active.
Graham Syfert - Jacksonville Lawyer