GA Code § 12-5-376 (2021)
2021 Georgia Code|Title 12 - Conservation and Natural Resources|Chapter 5 - Water Resources|Article 5 - Rivers and River Basins|Part 3 - Dam Safety|§ 12-5-376. Permits to Construct and Operate Dams

  Any person who desires to construct a dam but has not commenced such construction as of July 1, 1978, shall obtain a permit from the director to construct a dam prior to commencement of construction. Any person who is operating a dam or who is in the physical process of constructing a dam as of July 1, 1978, shall obtain a permit from the director for such operation or construction, provided that the person may continue to operate or construct such dam pending final action by the director on the application for a permit; provided, further, that such application has been filed with the director within 180 days after the director serves upon the person a written notice that such dam has been classified as a category I dam in accordance with Code Section 12-5-375. Service of notice upon the person shall be made by delivering the notice to the person or by mailing it to the person by certified mail or statutory overnight delivery at the person's home or business address. Service by mail is complete upon mailing unless the notice is returned to the director by the U.S. Postal Service for any reason other than a refusal by the person to accept the mailing. Permits issued for the construction of dams pursuant to this part shall also authorize the operation of such dams in accordance with the conditions contained in such permits.   If the director reclassifies a dam formerly classified as a category II dam as a category I dam because of modification in the dam or because of changing circumstances, the director shall serve upon the owner or operator of the dam a written notice of the director's determination regarding the dam. Within 180 days after such service of notice, the owner or operator shall apply to the director for a permit to operate the dam. Notice shall be served in accordance with subsection (a) of this Code section. Such owner or operator may continue to operate the dam pending final action by the director on the application for a permit. A permit to operate such dam shall be issued in accordance with the requirements of subsection (g) of this Code section, notwithstanding the date specified in said subsection (g).   Notwithstanding subsection (a) of this Code section, no permit shall be required to be obtained by any person who constructs a dam, if the dam is constructed in connection with or incidental to "surface mining" as defined in Part 3 of Article 2 of Chapter 4 of this title, but if the dam so constructed is classified by the director as a category I dam, the owner or operator shall, upon the completion of the mining activity in connection with which such dam was constructed, either drain and reclaim the impoundment formed by such dam pursuant to such person's mining land use plan approved by the director under Part 3 of Article 2 of Chapter 4 of this title, the "Georgia Surface Mining Act of 1968," or stabilize such impoundment as a lake pursuant to such mining land use plan. If the impoundment is reclaimed as a lake and the dam which created the impoundment remains in place as a category I dam, then, before such lake is deemed acceptable reclamation and the miner is released from his obligations under Part 3 of Article 2 of Chapter 4 of this title the miner must obtain a permit for such dam as provided by this part.   Consistent with the provisions of Code Section 12-5-376.1, the director is authorized to establish such conditions in permits issued pursuant to this part as are necessary to assure compliance with this part and all rules and regulations promulgated under this part. The director, under the conditions he prescribes, may require the submission of such plans, specifications, and other information as he deems relevant in connection with the issuance of such permits and subsequent construction and operation of such dams.   Permit applications for the construction of dams shall be accompanied by a certificate from a professional engineer registered to practice in Georgia stating that he is responsible for the design of the dam and that the design meets the standards of this part and the rules and regulations promulgated under this part. As an alternative to a certificate from a professional engineer, the director may accept a permit application accompanied by a certificate from the United States Soil Conservation Service stating that the design of the dam meets the standards of this part and the rules and regulations promulgated under this part.   If the director disapproves an application for construction of a dam, a copy of the application shall be returned to the applicant with a statement of the reasons for such disapproval. Such applicant may reapply incorporating the improvements indicated by the director.   Permits authorizing the operation of dams in existence or being physically constructed as of July 1, 1978, shall be issued only when one of the following conditions precedent is met:   Approval by the director of the applicant's submission of a detailed engineering study of the dam, prepared by a professional engineer registered by the State of Georgia or prepared by the United States Soil Conservation Service;   Approval by the director of a written report prepared by the division or other authorized agency under contract with the director entered into upon behalf of the division after a visual inspection has been performed by such agency under the supervision of a professional engineer registered by the State of Georgia; or   Approval by the director of the applicant's submission of a written report prepared by a professional engineer registered by the State of Georgia after a visual inspection has been performed under the supervision of such engineer.     Subsection (g) of this Code section shall not be construed as exempting any existing dam from compliance with the design standards established pursuant to this part and the rules and regulations promulgated under this part prior to the issuance of a permit authorizing the operation of such dam. Further, in the event a visual inspection provided for in paragraph (2) or paragraph (3) of subsection (g) of this Code section reveals that distress of the dam is indicated by various conditions including, but not limited to, lack of adequate maintenance, seepage, surface cracks, settlement, movement, or erosion, or when such inspection indicates that the dam was not designed or constructed in accordance with the requirements of this part and the rules and regulations promulgated under this part, a permit may be issued only after the director has received a detailed engineering study as provided for in paragraph (1) of subsection (g) of this Code section. Based upon a review of such study, the director shall deny the permit or issue it subject to conditions necessary to bring the dam into compliance with this part and the rules and regulations promulgated under this part.   The visual inspection performed pursuant to paragraph (2) of subsection (g) of this Code section shall be made by the division or under the provisions of a contract between the director entered into upon behalf of the division and the United States Army Corps of Engineers, the United States Soil Conservation Service, the Georgia Department of Transportation, or some other governmental agency.   The director may revoke, suspend, or modify any permit issued pursuant to this part or deny the issuance of a permit for cause, including, but not limited to, the following:   Violation of any condition of the permit;   Obtaining a permit by misrepresentation or by failure to disclose fully all relevant facts;   Violation of any provision of this part or any rule or regulation promulgated under this part;   Failure to comply with dam safety standards provided for in this part or any rules and regulations promulgated under this part;   Change in any condition that requires revocation, suspension, or modification of a permit in order to ensure compliance with this part or any rules and regulations promulgated under this part.     Earthen embankments serving as dams shall be protected from surface erosion by appropriate vegetation or some other type protective surface such as riprap or paving and shall be maintained in a safe condition. Examples of appropriate vegetation include, but are not limited to, Bermuda grass, Tall Fescue, and Lespedeza sericea. Inappropriate vegetation such as trees shall be removed from dams only after consultation with the division on the proper procedures for removal. Hedges and small shrubs may be allowed if they do not obscure inspection or interfere with the operation and maintenance of the dam.    (Ga. L. 1978, p. 795, § 7; Ga. L. 1982, p. 2339, §§ 5, 13; Ga. L. 1983, p. 3, § 9; Ga. L. 1984, p. 454, §§ 5, 6; Ga. L. 1992, p. 1098, § 6; Ga. L. 1996, p. 6, § 12; Ga. L. 2000, p. 1589, § 3.)   Editor's notes.   - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provided that the 2000 amendment was applicable with respect to notices delivered on or after July 1, 2000.   JUDICIAL DECISIONS   Condemnation action.    - O.C.G.A. § 12-5-376(a) provides only that a permit must be obtained prior to the commencement of construction of a dam. Ware v. Henry County Water & Sewerage Auth., 258 Ga. App. 778, 575 S.E.2d 654 (2002).   OPINIONS OF THE ATTORNEY GENERAL   Scope of exemption under subsection (c).    - Under subsection (c) of O.C.G.A. § 12-5-376, impoundments constructed in connection with surface mining activities are exempt from subsections (a) and (b) only so long as the impoundment is used in connection with mining activities. 1981 Op. Att'y Gen. No. 81-3.   RESEARCH REFERENCES   Am. Jur. 2d.   - 51 Am. Jur. 2d, Licenses and Permits, §§ 35, 42, 50 et seq.   C.J.S.   - 53 C.J.S., Licenses, §§ 59, 60.