TITLE 12 CONSERVATION AND NATURAL RESOURCES

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

ARTICLE 3 WELLS AND DRINKING WATER

12-5-96. Regulated reasonable use of ground water for general use; permits to withdraw, obtain, or utilize; coordination with water plans; appeal procedures.

1. No person shall withdraw, obtain, or utilize ground waters in excess of 100,000 gallons per day for any purpose unless such person shall first obtain a permit therefor from the division.
2. Any person applying for a permit or a permit modification under this part which indicates an increase in water usage, except for permits for solely agricultural usage, shall also submit with such application a water conservation plan approved by the director and based on guidelines issued by the director.The director shall collect and disseminate such technical information as the director deems appropriate to assist in the preparation of water conservation plans.
When sufficient evidence is provided by the applicant that the water withdrawn or used from the ground is not consumptively used, a permit therefor shall be issued by the division without a hearing and without the conditions provided in subsection (c) of this Code section. Applications for such permits shall set forth such facts as the division shall deem necessary to enable it to establish and maintain adequate records of all water uses.
In all cases in which sufficient evidence of a nonconsumptive use is not presented by the applicant, the division shall notify the applicant of the division's proposed action concerning such permit and shall transmit with such notice a copy of any permit it proposes to issue to the applicant, which permit will become final unless a request for a hearing is made within 30 days from the date of service of such notice. The division shall have the power:
1. To grant such permit with such conditions as the division deems necessary to implement the regulations adopted pursuant to Code Section 12-5-95;
2. To grant any temporary permit for such period of time as the division shall specify where conditions make such temporary permit essential, even though the action allowed by such permit may not be consistent with the regulations of the Board of Natural Resources;
3. To modify or revoke any permit upon not less than 60 days' written notice to any person affected;
4. To deny such permit if the application therefor or the effect of the water use proposed or described therein upon the water resources of the area is found to be contrary to public interest. Any water user wishing to contest the proposed action shall be entitled to a hearing upon request therefor.
In adopting any regulations pursuant to Code Section 12-5-95 and in considering permit applications, revocations, or modifications under this Code section, the Board of Natural Resources or the division shall consider:
1. The number of persons using an aquifer and the object, extent, and necessity of their respective withdrawals or uses;
2. The nature and size of the aquifer;
3. The physical and chemical nature of any impairment of the aquifer adversely affecting its availability or fitness for other water uses, including public use;
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;
7. The importance and necessity of the uses, including farm uses, claimed by permit applicants under this Code section, or of the water uses of the area under Code Section 12-5-95, and the extent of any injury or detriment caused or expected to be caused to other water uses, including public use;
8. Diversion from or reduction of flows in other watercourses or aquifers in accordance with Article 8 of this chapter or any state-wide water plan provided pursuant thereto; and
9. Any other relevant factors.
Regional water development and conservation plans for the state's major aquifers or any portion thereof shall be developed in accordance with Article 8 of this chapter. Such plans shall include water development, conservation, and sustainable use and shall be based on detailed scientific analysis of the aquifer, the projected future condition of the aquifer, and current demand and estimated future demands on the aquifer, in accordance with Article 8 of this chapter. Such plans shall serve to promote the conservation and reuse of water within the state, guard against a shortage of water within the state and each region, and promote the efficient use of the water resource and shall be consistent with the general welfare and public interest of the state as provided in Code Section 12-5-91, in accordance with Article 8 of this chapter. Upon adoption of a regional plan, all permits issued by the division shall be consistent with such plan. The term of any permit and all provisions of any permit for which an application for renewal is made prior to the completion of any regional plan shall be extended at least until the completion of such plan. Applications for new permits shall be subject to review by the division, and the division may issue such permits as appropriate pending completion of a regional plan.
The division shall give notice of all its official acts which have or are intended to have general application and effect to all persons on its mailing list on the date when such action is taken. It shall be the duty of the division to keep such a mailing list on which it shall record the name and address of each person who requests a listing thereon, together with the date of receipt of such request. Any person may, by written request to the division, ask to be permanently recorded on such a mailing list.
Any hearing pursuant to this Code section shall be held in accordance with subsection (c) of Code Section 12-2-2 and also, for the purposes of this part, shall be specifically subject to subsection (a) of Code Section 50-13-19.
1. Except as otherwise provided in Code Section 12-5-102 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 Amendments 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 a right of judicial review thereof in accordance with Chapter 13 of Title 50, including the right to seek judicial review in the superior court in the county of the applicant's or permittee's residence. For the purposes of this part, such review is also specifically subject to subsection (a) of Code Section 50-13-19.
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.

(Ga. L. 1972, p. 976, § 6; Ga. L. 1973, p. 1273, §§ 10-15; Ga. L. 1982, p. 3, § 12; Ga. L. 1988, p. 1694, §§ 4, 5; Ga. L. 1992, p. 6, § 12; Ga. L. 1994, p. 863, § 3; Ga. L. 1995, p. 706, §§ 3, 4; Ga. L. 2007, p. 739, § 4/SB 200; Ga. L. 2008, p. 644, § 4-3/SB 342.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1988, "aquifer" was substituted for "acquifer" in paragraph (d)(3).

Editor's notes.

- Ga. L. 2007, p. 739, § 5/SB 200, not codified by the General Assembly, provides that the 2007 amendment shall only become effective on January 1, 2009, upon the ratification of a resolution at the November, 2008, state-wide general election that amends the Constitution so as to authorize the General Assembly to provide by general law for the creation and comprehensive regulation of infrastructure development districts. If such resolution is not so ratified, this Act shall not become effective and shall stand repealed in its entirety on January 1, 2009. The constitutional amendment proposed in Ga. L. 2007, p. 775, was defeated in the general election on November 4, 2008.

Law reviews.

- For survey article on environment, natural resources, and land use, see 34 Mercer L. Rev. 145 (1982). For article, "Water Rights, Public Resources, and Private Commodities: Examining the Current and Future Law Governing the Allocation of Georgia Water," see 38 Ga. L. Rev. 1009 (2004). For note, "The Problem of Reallocation in a Regulated Riparian System: Examining the Law in Georgia," see 40 Ga. L. Rev. 207 (2005). For note on 2007 amendment of this Code section, see 24 Ga. St. U.L. Rev. 255 (2007).

RESEARCH REFERENCES

Am. Jur. 2d.

- 2 Am. Jur. 2d, Administrative Law, § 268. 51 Am. Jur. 2d, Licenses and Permits, §§ 30, 35 et seq., 57. 78 Am. Jur. 2d, Waters, §§ 2, 205.

C.J.S.

- 53 C.J.S., Licenses, §§ 50, 52, 58, 59, 82. 93 C.J.S., Waters, § 199 et seq. 73 C.J.S., Public Administrative Law and Procedure, § 201 et seq. 73A C.J.S., Public Administrative Law and Procedure, § 204.

ALR.

- Propriety of injunctive relief against diversion of water by municipal corporation or public utility, 42 A.L.R.3d 426.

JUDICIAL DECISIONS

Administrative law judge's final decision not subject to challenge.

- Administrative law judge's affirmance of the Georgia environmental department's denial of a city's application for an additional groundwater withdrawal permit was not error because the denial was based on the conditions encompassed in a prior consent order that required the city to take various measures to obtain more groundwater as there was no issue regarding whether the city's current and projected water needs could be satisfied by carrying out the provisions of the consent order, pursuant to O.C.G.A. § 12-5-96(d)(1); claims that were not challenged previously became final pursuant to O.C.G.A. § 12-5-185 and could not be collaterally attacked under res judicata principles. City of Rincon v. Couch, 276 Ga. App. 567, 623 S.E.2d 754 (2005).

Factors considered for groundwater withdrawal permit.

- Georgia environmental department was not required to grant a city's application for a groundwater withdrawal permit merely because no adverse effect on other users was shown as there were other circumstances that supported denial of the permit request, pursuant to Ga. Comp. R. & Regs. r. 391-3-2-.06(2) and O.C.G.A. § 12-5-96(d); the department was entitled to weigh the costs to the city of purchasing water against other public policy concerns, such as the need for conservation of limited water resources pursuant to O.C.G.A. § 12-5-91. City of Rincon v. Couch, 276 Ga. App. 567, 623 S.E.2d 754 (2005).

Consideration of alternative water source.

- Administrative law judge who reviewed the Georgia environmental department's denial of a city's application for an additional groundwater withdrawal permit properly considered whether there was an alternative water source currently available to the city, pursuant to O.C.G.A. § 12-5-96(d)(1), based on the plain language of the statute and of the term "necessity"; there was a lack of evidence regarding the department's alleged policy on that issue, such that the city's claim to the contrary lacked merit. City of Rincon v. Couch, 276 Ga. App. 567, 623 S.E.2d 754 (2005).

Denial of groundwater withdrawal permit proper.

- Georgia environmental department's analysis and decision to deny a city's application for a groundwater withdrawal permit complied with O.C.G.A. § 12-5-96(d) as a matter of law as the decision supported the policies of the Groundwater Use Act of 1972, as set out in O.C.G.A. § 12-5-91, the department was entitled to place more emphasis on the city's need or necessity for a new water withdrawal under O.C.G.A. § 12-5-90(d)(1) over other factors, and the department was not statutorily or regulatorily required to issue findings of fact and conclusions of law to show that the department considered all ten factors under § 12-5-96(d). City of Rincon v. Couch, 276 Ga. App. 567, 623 S.E.2d 754 (2005).

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