TITLE 12 CONSERVATION AND NATURAL RESOURCES

Section 5. Water Resources, 12-5-1 through 12-5-586.

ARTICLE 5 RIVERS AND RIVER BASINS

12-5-445. Review of application and supporting documents by commission; effect of inconsistencies; alternatives where modification recommended.

1. After receipt of a complete application for a certificate, the governing authority shall transmit to the commission a copy of such complete application and all supporting documents.
2. 1. If, from the application or from its own investigation, the commission finds that there are inconsistencies between the plan and the land-disturbing activity proposed by the application, the commission may do any one of the following:
      1. Recommend modification of the application in such manner as to be consistent with the plan;
      2. Make a finding that the application, while not consistent with the plan in all respects, will provide a level of land and water resource protection equivalent to an application consistent with the plan; or
      3. Recommend modification of the application in such manner that the application as so modified, while not consistent with the plan in all respects, will provide a level of land and water resource protection equivalent to an application consistent with the plan.
   2. If the commission fails to recommend modification of the application within 60 days from submission of such application to the commission and if the governing authority makes a specific finding that the application is consistent with the plan or makes a specific finding that the application, while not consistent with the plan in all respects, will provide a level of land and water resource protection equivalent to an application consistent with the plan, the governing authority shall be deemed to have complied with this Code section and may issue the certificate.
3. In any case where the commission has recommended modification of an application, the governing authority may:
   1. Adopt such recommendation, incorporate it as a condition of the certificate, and issue a certificate with such conditions, in which case any land-disturbing activity under the certificate must be strictly in accordance with the recommendation so incorporated;
   2. After making a specific finding that the application is in compliance with the plan or a specific finding that the application, while not consistent with the plan in all respects, will provide a level of land and water resource protection equivalent to an application consistent with the plan, override such recommendation by affirmative vote of a two-thirds' majority of the full membership of the governing body; however, such action by the governing authority is not final unless and until the governing authority:
      1. Following the affirmative vote to override, holds a second public hearing on the application and the proposed override of the commission's recommendation, after giving public notice and after mailing notice to the applicant, the owner, and the commission at least ten days prior to the hearing;
      2. Gives full consideration to all comments made at the second public hearing;
      3. Obtains from the director a written finding that the application is consistent with the plan or, while not consistent with the plan in all respects, will provide a level of land and water resource protection equivalent to an application consistent with the plan; and
      4. Reaffirms the vote to override the commission's recommendation by affirmative vote of a two-thirds' majority of the full membership of the governing authority, after again making a specific finding that the application is in compliance with the plan or a specific finding that the application, while not consistent with the plan in all respects, will provide a level of land and water resource protection equivalent to an application consistent with the plan; or
   3. Request reconsideration of such recommendation by the commission at a public hearing.

      If the governing authority fails to take action under either paragraph (1), (2), or (3) of this subsection within 45 days after the submission of the recommendation of the commission to the governing authority, the certificate shall not be issued. Where a public hearing is requested under this subsection, such public hearing shall be held by the commission within 30 days after receipt of such request. Notice stating the time and place of the public hearing shall be mailed at least ten days prior to the hearing to the governing authority, the applicant, and the owner and public notice shall be given. The commission shall make its final determination with respect to such recommendation within 30 days after such public hearing. The request for a public hearing under this subsection may be made by the applicant, the owner, or the governing authority involved.

4. 1. In making the findings required by subsection (b) or by paragraph (2) of subsection (c) of this Code section, the commission, the governing authority, and the director shall follow the purposes set forth in this part and the goals set forth by the plan, as amended.
   2. Any finding by the director under paragraph (2) of subsection (c) of this Code section shall be appealable under Chapter 13 of Title 50, known as the "Georgia Administrative Procedure Act," as are final decisions in contested cases.

(Ga. L. 1973, p. 128, § 6; Ga. L. 1975, p. 837, § 6; Code 1981, §12-5-445, enacted by Ga. L. 1982, p. 2107, § 4; Ga. L. 1983, p. 1059, § 5; Ga. L. 1986, p. 321, § 2; Ga. L. 1989, p. 1317, § 6.8; Ga. L. 1998, p. 1394, § 5; Ga. L. 2008, p. 181, § 25/HB 1216.)