GA Code § 12-5-23 (2021)
2021 Georgia Code|Title 12 - Conservation and Natural Resources|Chapter 5 - Water Resources|Article 2 - Control of Water Pollution and Surface-Water Use|§ 12-5-23. Powers and Duties of Board and Director as to Control of Water Pollution and Surface-Water Use Generally

  In the performance of its duties, the board shall have and may exercise the power to:   Adopt, promulgate, modify, amend, and repeal rules and regulations to implement and enforce the provisions of this article as the board may deem necessary to provide for the control and management of water pollution and surface water use to protect the environment and the health of humans. Such rules and regulations may be applicable to this state as a whole, may vary from area to area, or may vary according to the characteristics of the water pollutants, as may be appropriate, to facilitate the accomplishment of the provisions, purposes, and policies of this article. The rules and regulations may include, but shall not be limited to, the following:   Prescribing the procedure to be followed in applying for permits and requiring the submission of such plans, specifications, verifications, and other pertinent information deemed relevant in connection with the issuance of such permits;   Establishing or revising standards of water purity for any of the waters of the state, specifying the maximum degree of pollution permissible in accordance with the public interest in water supply; the conservation of fish, game, and aquatic life; and agricultural, industrial, and recreational uses;   Governing water use classifications and water quality standards;   Governing any marine toilet, marine sanitation device, or other disposal unit located on or within a boat operated on waters of the state;   Establishing procedures for dealing with emergency situations and spills which endanger the waters of the state;   Providing minimum standards for treatment of discharges; providing uniform procedures and practices to be followed relating to the application for issuance, modification, revocation and reissuance, and termination of permits for the discharge of any pollutant into the waters of the state;   Providing for permissible limits of surface water usage for both consumptive and nonconsumptive purposes and providing permits to withdraw, divert, or impound surface waters;   Providing minimum standards for waste-water pretreatment required and the uniform procedures and practices to be followed relating to the application for and the issuance or revocation of pretreatment permits for the discharge of any pollutant into a publicly owned treatment works and then into the waters of the state, and providing requirements for approval and implementation of publicly owned treatment works pretreatment programs and for administration of pretreatment programs;   Providing for uniform procedures and practices to be followed for the determination of categorization of industrial users and requests for variances for fundamentally different factors;   Providing minimum standards of pollutant treatment required and uniform procedures and practices to be followed relating to the application for and the issuance, modification, amendment, or revocation of permits for the discharge of pollutants into land disposal or land treatment systems and then into the waters of the state;   Establishing classifications for waste-water treatment plants;   Providing uniform practices and procedures to be followed relating to the application for and the issuance, modification, amendment, or revocation of permits for the discharge of pollutants into underground injection wells;   Providing for the administration and operation of the State Revolving Loan Fund;   Providing standards for treatment of discharges; providing uniform procedures and practices to be followed relating to the application for issuance, modification, revocation and reissuance, and termination of general permits for the discharge of any pollutant to the waters of the state;   Providing for the uniform procedures and practices to be followed relating to the application for issuance, modification, revocation and reissuance, and termination of permits for the discharge of any storm water into the waters of the state;   Establishing requirements for the beneficial use of sewage sludge through land application, including pollutant limits, pathogen and vector attraction reduction requirements, operational standards, management practices, monitoring, recordkeeping, reporting, and permitting requirements;   Providing for rules and regulations for land disposal;   Providing for matters necessary to carry out the purposes and requirements of this article and relating to the state's participation in the National Pollutant Discharge Elimination System established under the federal Water Pollution Control Act; and   Establishing requirements for units of local government which have waste-water discharge permits that allow a discharge of at least one million gallons per day to submit to the director for approval watershed assessments and watershed protection plans for areas within their political boundaries and for implementation of such plans;     Within one year from April 1, 1996, the board shall by rule establish water quality standards for turbidity applicable to all waters of the state, taking into account the recommendations of the academic panel established under the Interim Report of the Senate Storm-water Study Committee created by Senate Resolution 252 (1993) and interested parties;   Take all necessary steps to ensure the effective enforcement of this article;   By July 1, 2002, the board shall promulgate rules and regulations which:   Establish acceptable sampling methods and analytical standards for water quality samples collected and reported by any person to the division for its use in listing or delisting impaired waters pursuant to the state's responsibilities under Sections 303(d) and 305(b) of the federal Water Pollution Control Act, 33 U.S.C. Sections 1313(d) and 1315(b), respectively, as now or hereafter amended; and   Establish acceptable sampling methods and analytical standards for measuring salinity in coastal waters and defining the zones where salt, fresh, and brackish waters mix; and       By December 31, 2003, the board shall promulgate rules and regulations which establish a fee system designed to offset the costs of the state-wide implementation of the National Pollution Discharge Elimination System general permit or permits for storm-water runoff from construction activities as is now in effect or as may be amended or reissued in the future pursuant to the state's authority to implement the same through federal delegation under the Federal Water Pollution Control Act, as amended, 33 U.S.C. Section 1251, et seq., and subsection (f) of Code Section 12-5-30.   Fees established by the board under this paragraph shall be no less than that which is required to properly administer Chapter 7 of this title, provided that such fees shall not exceed $80.00 per acre of land-disturbing activity as defined in Code Section 12-7-3.       In the performance of his or her duties, the director may:   Conduct or cooperate in research for the purpose of developing economical and practicable methods of preventing and controlling pollution;   Cooperate with agencies of the federal government and with other agencies of the state and political subdivisions thereof;   Enter into agreements and compacts with other states, and with the United States, relative to the prevention and control of pollution in any state waters and on water quality matters, in accordance with the Constitution and statutes of Georgia;   Receive, accept, hold, and use on behalf of the state, and for purposes provided for in this article, gifts, grants, donations, devises, and bequests of real, personal, and mixed property of every kind and description; and   At the discretion of the director, give instruction and training to waste-water treatment plant operators and waste-water laboratory analysts; provide technical assistance for such instruction and training by others; collect fees for such training and assistance in accordance with Code Section 45-12-92; purchase the services of any person to render such instruction and training; and make available to any such person suitable space and facilities for the rendering of such instruction and training. The division may collect from the participants in any such instructional or training program a pro rata share of any actual out-of-pocket expenses incurred by the division in producing such program including, without limitation, the rental of nonagency facilities and the payment of nonagency instructors.     In the performance of his or her duties, the director shall:   Exercise general supervision over the administration and enforcement of this article and all rules, regulations, and orders promulgated hereunder;   Act in the interest of the people of the state to restore and maintain a reasonable degree of purity in the waters of the state;   Encourage voluntary cooperation by all persons in the state in restoring and maintaining a reasonable degree of purity in the waters of the state;   Survey the waters of the state to determine the extent, character, and effects of existing conditions of pollution;   Prepare and develop a general comprehensive plan for the prevention of any further pollution and reduction of existing pollution after a thorough study of existing practices and available research;   Administer and enforce the laws of the state relating to the prevention and control of pollution;   Hold hearings to determine whether or not an alleged pollution is contrary to the public interest;   Adopt rules and procedures for the conduct of meetings and hearings. In all hearings relative to violations, or for other procedures under this article, the rules of evidence shall be followed;   Establish or revise standards of water purity for any of the waters of this state, which specify the maximum degree of pollution permissible in accordance with the public interest in water supply; the conservation of fish, game, and aquatic life; and agricultural, industrial, and recreational uses. Prior to establishing or revising the standards of water purity, the division shall consider the technical means available for the reduction of pollution and the economic factors involved;   Require any marine toilet or other disposal unit located on or within any boat operated on waters of this state to have securely affixed to the interior discharge toilet or unit a suitable treatment device in operating condition, constructed and fastened in accordance with regulations of the division, or some other treatment or facility or method authorized by regulation of the division. All sewage passing into or through the marine toilet or units shall pass solely through such device. All boats located upon the waters of this state are subject to inspection by the division or its duly authorized agents at any time for the purpose of determining compliance with this paragraph, provided that this paragraph does not apply to ocean-going vessels of 20 tons displacement or more;   Make investigations and inspections to ensure compliance with this article, the rules and regulations issued pursuant hereto, and any orders that the division may adopt or issue;   Issue an order or orders directing any particular person or persons to secure within the time specified therein such operating results as are reasonable and practicable of attainment toward the control, abatement, and prevention of pollution of the waters of the state and the preservation of the necessary quality for the reasonable use thereof;   Establish or revise through rules and regulations of the Board of Natural Resources or permit conditions, or both, effluent limitations based upon an assessment of technology and processes unrelated to the quality of the receiving waters of this state;   Establish or revise through rules and regulations of the Board of Natural Resources or permit conditions, or both, permissible limits of surface-water usage for both consumptive and nonconsumptive purposes;   Perform any and all acts and exercise all incidental powers necessary to carry out the purposes and requirements of this article and of the Federal Water Pollution Control Act, as amended, 33 U.S.C. Section 1251, et seq., relating to this state's participation in the National Pollutant Discharge Elimination System established under that act and shall administer the fee program established by the board pursuant to paragraph (5) of subsection (a) of this Code section;   Establish the standards for water plans prepared by the Metropolitan North Georgia Planning District and certify such plans as consistent or inconsistent with such standards. Such standards shall include but shall not be limited to the following objectives: maintaining water quality in all streams and public lakes that meet state water quality standards; improving water quality in all streams and public lakes that do not meet state water quality standards; and maintaining appropriate levels of stream flow downstream of new or expanding surface-water withdrawal facilities; and   Provide an annual accounting for all transfers of water exceeding an annualized one million gallons per day from one major river drainage basin or subsurface supply aquifer to another. To the extent possible, the director shall use information derived from permits issued by the director pursuant to Code Sections 12-5-30 and 12-5-31, together with any supporting documentation, to fulfill the requirements of this paragraph.     If the director has reasonable cause to believe that an applicant for a permit under this article to discharge pollutants who has less than three years of compliance history in this state is not in compliance with laws or permits, then, the director is authorized to require the applicant to submit, at the time of application, a compliance history disclosure form prepared by the department. The form shall include a statement to the effect that neither the applicant nor, in the case of a corporation or partnership, an officer, director, manager, partner, or shareholder of 5 percent or more of the stock or financial interest in such corporation or partnership has been convicted of a felony or been adjudicated in contempt of court as described in this subsection. Such form shall also require a listing of the names, social security numbers, taxpayer identification numbers, and business addresses of the applicant or, in the case of a corporation or partnership, its officers, directors, managers, partners, or shareholders of 5 percent or more of the stock or financial interest in such corporation or partnership, along with a description of any offenses identified by this subsection. The director may refuse to issue permits under this article for the discharge of pollutants to persons with less than three years of compliance history in this state if the director finds by clear and convincing evidence that the applicant for such a permit or, in the case of a corporation or partnership, an officer, director, manager, partner, or shareholder of 5 percent or more of the stock or financial interest in such corporation or partnership:   Has intentionally misrepresented or concealed any material fact in the application submitted to the director;   Has obtained or attempted to obtain another permit from the director by misrepresentation or concealment;   Has pleaded guilty or been convicted by final judgment, and all appeals have been exhausted, in this state or any other state or federal court of any felony involving moral turpitude within the three years preceding the date of the application for such a permit;   Has pleaded guilty or been convicted by final judgment and all appeals have been exhausted to a third or subsequent material violation of any federal environmental law or any environmental law of this state or of any other state that presented a substantial endangerment to human health or the environment within three years preceding the date of the application for such a permit;   Has been adjudicated in contempt of any court order enforcing any federal environmental laws or any environmental laws of this state or of any other state within three years preceding the date of the application for such a permit;   Was the holder of any permit required for the discharge of pollutants, as defined by this article, under the laws of this state, any other state, or the Federal Water Pollution Control Act Amendments of 1972, as amended, which permit has been revoked for reasons of noncompliance within three years preceding the date of the application for a permit under this article; or   Was denied for reasons of noncompliance the issuance of any permit required for the discharge of pollutants, as defined by this article, under the laws of this state, any other state, or the Federal Water Pollution Control Act Amendments of 1972, as amended, within three years preceding the date of the application for a permit under this article.     The director is authorized to refuse to issue permits under this article for the discharge of pollutants to persons with three or more years of compliance history in this state if the director finds by clear and convincing evidence that the applicant for such a permit or, in the case of a corporation or partnership, an officer, director, manager, partner, or shareholder of 5 percent or more of the stock or financial interest in such corporation or partnership:   Has intentionally misrepresented or concealed any material fact in the application submitted to the director;   Has obtained or attempted to obtain another permit from the director by misrepresentation or concealment;   Has pleaded guilty or been convicted by final judgment, and all appeals have been exhausted, in this state of any felony involving moral turpitude within three years preceding the date of the application for such a permit;   Has pleaded guilty or been convicted by final judgment, and all appeals have been exhausted, to a third or subsequent material violation of any environmental law of this state that presented a substantial endangerment to human health or the environment within three years preceding the date of the application for such a permit;   Has been adjudicated in contempt of any court order enforcing any environmental laws of this state within the three years preceding the date of the application for such a permit;   Was the holder of any permit required for the discharge of pollutants under this article and such permit has been revoked for reasons of noncompliance within three years preceding the date of application for a permit under this article; or   Was denied for reasons of noncompliance the issuance of any permit required for the discharge of pollutants, as defined by this article, under the laws of this state within three years preceding the date of the application for a permit under this article.     The director shall not refuse to issue a permit based upon the information required under subsections (d) and (e) of this Code section if the director finds that affirmative actions taken by the applicant mitigate the impact of any such material misrepresentations, concealment, convictions, or adjudication. Such affirmative actions to be considered by the director as mitigating factors shall include, but not be limited to, information or documentation related to the following:   Implementation by the applicant of formal policies, training programs, or other management controls to minimize the occurrence of future unlawful activities;   Installation by the applicant of environmental auditing or compliance programs; or   The discharge from employment of any individual who was convicted of a crime as described in subsections (d) and (e) of this Code section.     The director shall make separately stated findings of fact to support a written determination made under subsections (d), (e), and (f) of this Code section. The findings of ultimate fact contained in such written determination must be accompanied by a concise statement of the underlying basic facts of record to support the findings.    (Ga. L. 1957, p. 629, § 4; Ga. L. 1964, p. 416, §§ 5, 24; Ga. L. 1966, p. 316, § 1; Ga. L. 1972, p. 1015, §§ 1517, 1534; Ga. L. 1972, p. 1266, § 1; Ga. L. 1974, p. 599, §§ 6, 7; Ga. L. 1977, p. 368, § 2; Ga. L. 1993, p. 305, § 1; Ga. L. 1996, p. 255, § 1; Ga. L. 1998, p. 1644, § 1; Ga. L. 2001, p. 115, §§ 2, 3; Ga. L. 2001, p. 892, §§ 2, 3; Ga. L. 2003, p. 224, §§ 2, 3.)   Code Commission notes.   - Pursuant to Code Section 28-9-5, in 1994, "National Pollutant Discharge Elimination System" was substituted for "national pollutant discharge elimination system" in the middle of paragraph (b)(15) (now paragraph (c)(15)).   Pursuant to Code Section 28-9-5, in 1996, in subsection (a), "article" was substituted for "part" twice in paragraph (a)(1) and once in paragraph (a)(3); a comma was deleted following "revocation" in subparagraph (a)(1)(N); "storm water" was substituted for "stormwater" in subparagraph (a)(1)(O); "April 1, 1996" was substituted for "the effective date of this Code section" in paragraph (a)(2); and "ensure" was substituted for "insure" in paragraph (a)(3).   Pursuant to Code Section 28-9-5, in 2001, in subsection (c), paragraph (c)(16) as enacted by Ga. L. 2001, p. 892, § 3, was redesignated as paragraph (c)(17), a semicolon was substituted for the period at the end of paragraph (c)(15) and "; and" was added at the end of paragraph (c)(16).   U.S. Code.   - The Federal Water Pollution Control Act, referred to in this Code section, is codified as 33 U.S.C. § 1251 et seq. The National Pollutant Discharge Elimination System, referred to in this Code section, is established by 33 U.S.C. § 1342.   Administrative Rules and Regulations.   - Water quality control, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Natural Resources, Environmental Protection, Subject 391-3-6.   Law reviews.   - For article criticizing impressionistic approach to water use classification established by permit system, see 23 Mercer L. Rev. 603 (1972). For note, "Regulation of Artificial Lakes and Recreational Subdivisions in Georgia," recommending methods for future regulation, see 8 Ga. St. B.J. 580 (1972). For note on the 2001 amendment to O.C.G.A. § 12-5-23, see 18 Ga. St. U.L. Rev. 13 (2001). For note on the 2003 amendment to this Code section, see 20 Ga. St. U.L. Rev. 244 (2003).   JUDICIAL DECISIONS   Interpretation of narrative standard rule as to discharges.    - Georgia Department of Natural Resources Environmental Protection Division's (EPD's) interpretation of the narrative standard was entitled to deference as it was proper for the EPD to interpret the narrative standard as not intended to convert the designated use of a water body to a more protected use as the plain language of the narrative standard does not specify the degree of interference with legitimate water uses that would constitute a violation of the rule. Altamaha Riverkeeper, Inc. v. Rayonier Performance Fibers, LLC, 346 Ga. App. 269, 816 S.E.2d 125 (2018), cert. denied, No. S18C1474, 2019 Ga. LEXIS 554 (Ga. 2019).   Antidegradation rule did not apply to nonpoint sources.    - Water quality standard in Ga. Comp. R. & Regs. 391-3-6-.03(2)(b)(ii) did not require antidegradation analysis for nonpoint sources of pollution and, therefore, did not apply to a city's permit for a land application system, which involved spraying wastewater treated to remove solids and break down organic waste onto a tract of land. City of Guyton v. Barrow, 305 Ga. 799, 828 S.E.2d 366 (2019).   OPINIONS OF THE ATTORNEY GENERAL   Requirement of liability waivers restricts state's police power.   - Requiring the division personnel to sign waivers of liability for injuries to person or property sustained while on premises for the purpose of carrying out their duties of inspection constitutes an unreasonable restriction on the state's police power. 1976 Op. Att'y Gen. No. 76-121.    Waivers of liability signed by division personnel are not binding  because of a lack of valid consideration. 1976 Op. Att'y Gen. No. 76-121.   Sewage treatment and disposal subject to article.    - Treatment and disposition of sewage in the ground by means of a sprinkling system, and not in the waters of the state, is subject to the provisions of Ga. L. 1964, p. 416 (see O.C.G.A. T. 12, C. 5, A. 2); it is particularly subject to the provisions of Ga. L. 1964, p. 416, §§ 3, 5, 10, and 24 (see O.C.G.A. §§ 12-5-22,12-5-23, and12-5-29), although control is not necessarily limited to these sections. 1972 Op. Att'y Gen. No. U72-13.   RESEARCH REFERENCES   Am. Jur. 2d.   - 61B Am. Jur. 2d, Pollution Control, §§ 3, 4, 5.   61C Am. Jur. 2d, Pollution Control, § 675 et seq.   C.J.S.   - 39A C.J.S., Health and Environment, §§ 120, 123, 126 et seq., 132, 135, 139, 162.   ALR.   - Validity of prohibition or regulation of bathing, swimming, boating, fishing, or the like, to protect public water supply, 56 A.L.R.2d 790.