TITLE 12 CONSERVATION AND NATURAL RESOURCES

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

ARTICLE 5 RIVERS AND RIVER BASINS

12-5-456. Commission to notify local authorities of violations of this part; director's powers in absence of local action; hearings on violations.

1. If the commission has reason to believe that any person is carrying out any land-disturbing activity in or on the stream corridor without a certificate pursuant to this part, in violation of the terms and conditions of a certificate issued pursuant to this part, or in any other respect in violation of this part, the commission shall notify the governing authority of the political subdivision in which such illegal activity is taking place and shall recommend action to correct the situation. A copy of such notice to the governing authority shall be furnished to the director. If the commission has determined that the violation requires immediate enforcement action, the notice to the governing authority shall so state.
2. If, after notice from the commission, pursuant to subsection (a) of this Code section, of a violation which requires immediate enforcement action, a governing authority has failed to initiate an enforcement action or otherwise secure cessation of the violation within three business days of receipt of such notice, the commission shall so advise the director.
3. Upon notice from the commission pursuant to subsection (b) of this Code section of a violation of this part which requires immediate enforcement action and as to which the governing authority has failed to initiate enforcement action or otherwise secure cessation of the violation or upon a determination by the director, after consultation with the commission, that any person is violating any provision of this part, any rule or regulation adopted pursuant to this part, or the terms and conditions of any certificate issued pursuant to this part and that the public interest requires that the state take immediate action, the director shall have the authority to employ any one or any combination of any or all of the following enforcement methods:
   1. The director may issue a cease and desist order specifying the provision of this part or the rule or the term or condition of a certificate violated and requiring the person so ordered to cease and desist from such activity and to take corrective action within a reasonable period of time as prescribed in the order. Such corrective action may include, but shall not be limited to, requiring that the affected portion of the stream corridor be returned to its condition prior to the violation, insofar as practical. Any such order shall become final unless the person named therein requests in writing a hearing before a hearing officer appointed by the board no later than 30 days after the issuance of such order. Review of such order shall be available as provided in subsection (d) of this Code section;
   2. Whenever the director finds that an emergency exists requiring immediate action to protect the watercourse and the public interest, the director may issue an emergency cease and desist order, effective immediately, reciting the existence of such an emergency and requiring that such action be taken as he deems necessary to meet the emergency. Any person against whom such order is directed shall comply therewith immediately but, on application to the director, shall be afforded a hearing within five business days. On the basis of such hearing, the director shall be authorized to continue such order in effect, to revoke the order, or to modify it. Review of such order shall be available pursuant to subsection (d) of this Code section;
   3. The director may seek injunctive relief pursuant to subsection (b) of Code Section 12-5-452;
   4. Any person who engages in any land-disturbing activity in violation of this part, any rule or regulation adopted pursuant to this part, any certificate issued pursuant to this part, or any final or emergency order of the director shall be subject to a civil penalty not to exceed $1,000.00 for each acre or part thereof on which such violation occurs. Each day on which such violation exists is a separate offense. Whenever the director has reason to believe that any person has violated this part, any rule or regulation adopted pursuant to this part, any certificate issued pursuant to this part, or any order or emergency order issued pursuant to this part, he may upon written request cause a hearing to be conducted before a hearing officer appointed by the board. Upon finding that such person has violated any provision of this part, any rule or regulation adopted pursuant to this part, any certificate issued pursuant to this part, or any final cease and desist order or emergency order issued pursuant thereto, the hearing officer shall issue his decision imposing civil penalties as provided in this Code section; or
   5. In administrative proceedings or in judicial proceedings, the director may seek, among other relief, the restoration of the affected portion of the stream corridor to its original condition prior to the unauthorized land-disturbing activity, if possible and if environmentally appropriate. If such restoration is ordered by a final order of the Board of Natural Resources or of the superior court and not carried out within the time limit set forth in the final administrative order or final court order, the director shall be authorized to carry out such restoration, and the person responsible for the unauthorized land-disturbing activities shall be liable for the amount expended upon restoration. Such amount shall be recoverable by the director in an action against such person.
4. All hearings on and review of contested matters, orders, or other enforcement actions initiated by the director under this part shall be provided and conducted in accordance with subsection (c) of Code Section 12-2-2. The hearing and review procedure of this Code section shall be to the exclusion of all other means of hearings or review.
5. If, pursuant to this Code section, the director determines that the public interest requires initiation of an enforcement action by the director and if the director, after initiation of such enforcement action, secures cessation of the unauthorized activity or achieves the imposition of a civil penalty and the restoration of the land or is otherwise successful in correcting or penalizing the violation of this part, whether by formal legal action or by settlement, the governing authority within whose jurisdiction such violation occurred shall be liable to the state for the costs incurred by the state in such enforcement action, including the reasonable cost of attorneys' services.

(Code 1981, §12-5-456, enacted by Ga. L. 1983, p. 1059, § 12; Ga. L. 1989, p. 1317, § 6.14; Ga. L. 2008, p. 181, § 25/HB 1216.)