GA Code § 12-5-105 (2021)
2021 Georgia Code|Title 12 - Conservation and Natural Resources|Chapter 5 - Water Resources|Article 3 - Wells and Drinking Water|Part 2 - Ground-Water Use Generally|§ 12-5-105. Regulated Reasonable Use of Ground Water for Farm Use; Permits to Withdraw, Obtain, or Utilize; Metering; Related Procedures

  Notwithstanding any provisions of Code Section 12-5-95, 12-5-96, or 12-5-97 to the contrary, a permit to withdraw, obtain, or utilize ground waters for farm uses, as that term is defined by paragraph (5.1) of Code Section 12-5-92, shall be issued by the director to any person when the applicant submits an application which provides reasonable proof that the applicant's farm use of ground water occurred prior to July 1, 1988, and when such application is submitted prior to July 1, 1991. If submitted prior to July 1, 1991, an application for a permit to be issued based upon farm uses of ground water occurring prior to July 1, 1988, shall be granted for the withdrawal of ground water at a rate of withdrawal equal to the greater of the operating capacity in place for withdrawal on July 1, 1988, or, when measured in gallons per day on a monthly average for a calendar year, the greatest withdrawal capacity during the five-year period immediately preceding July 1, 1988. If submitted after July 1, 1991, or, regardless of when submitted, if it is based upon a withdrawal of ground water for farm uses occurring or proposed to occur on or after July 1, 1988, an application shall be subject to evaluation and classification pursuant to Code Sections 12-5-96 and 12-5-97, but a permit based upon such evaluation and classification shall be issued to ensure the applicant's right to a reasonable use of such ground water. Applications under this Code section submitted on or after April 20, 2006, for farm use within the Flint River basin shall be assessed a nonrefundable application fee in the amount of $250.00 per application. Any permit issued pursuant to this Code section shall be further conditioned upon the requirement that the permittee shall provide, on forms prescribed by the director, information relating to a general description of the lands and number of acres subject to irrigation and the permit; the name and address of the permittee; a description of the general type of irrigation system used; well construction; and pump information, including rated capacity, pump setting depth, and power information.   Notwithstanding any provisions of Code Section 12-5-95, 12-5-96, or 12-5-97 to the contrary, permits to withdraw, obtain, or utilize ground waters for farm uses, as that term is defined in paragraph (5.1) of Code Section 12-5-92, whether for new withdrawals or under subsection (a) of this Code section, shall be governed as follows:   Permits applied for under this Code section on or after April 20, 2006, for farm use within the Flint River basin shall have a term of 25 years and shall be automatically renewed at the original permitted capacity unless an evaluation by the division indicates that renewal at the original capacity would have unreasonable adverse effects upon other water uses. The division may renew the original permit at a lower capacity, but such capacity shall be based on the reasonable use of the permittee and evaluation of the resource;   A permittee may apply to have a permit issued under this Code section modified, amended, transferred, or assigned to subsequent owners of the lands which are the subject of such permit; provided, however, that:   The division shall receive written notice of any such transfer or assignment;   Any modification in or amendment to the use or capacity conditions contained in the permit or in the lands which are the subject of such permit shall require the permittee to submit an application for review and approval by the director consistent with the requirements of this part;   The permittee may commence withdrawing water under the modified, amended, transferred, or assigned permit on the effective date stated on the revised permit for farm use; and   For all permits for which such modification, amendment, transfer, or assignment is effective on or after April 20, 2018, and for which no water-measuring device is installed, the permittee shall have one year from the updated effective date stated on the revised permit for farm use to have an acceptable type of water-measuring device installed, to have such device in operation at each point of permitted withdrawal, and to notify the division in writing once the installation has occurred. The division shall approve or disapprove the installation within 60 days of the date of notification. The permittee shall be responsible for all associated costs;     Permits for farm use, after initial use has commenced, shall not be revoked, in whole or in part, for nonuse; except that the director may permanently revoke any permit under this Code section for farm use within the Flint River Basin applied for on or after April 20, 2006, if initial use for the purpose indicated on the permit application, as measured by a flow meter approved by the division has not commenced within two years of the date of issuance of the permit unless the permittee can reasonably demonstrate that his or her nonuse was due to financial hardship or circumstances beyond his or her control;   The director may suspend or modify a permit for farm use if he or she should determine through inspection, investigations, or otherwise that the quantity of water allowed would prevent other applicants from reasonable use of ground water beneath their property for farm use;   During emergency periods of water shortage, the director shall give first priority to providing water for human consumption and second priority to farm use; and   The importance and necessity of water for industrial purposes are in no way modified or diminished by this Code section.   May conduct its duties with division staff and may contract with other persons to conduct any of its duties;   May receive and use state appropriations, gifts, grants, or other sources of funding to carry out its duties;   Shall develop a priority system for the installation of devices for measurement of farm uses of water at the points of those withdrawals for which a permit was issued as of July 1, 2003. The division may refine the priority system from time to time based on the amount of funding received by the division, considerations regarding cost effectiveness, new technical information, changes in resource use or conditions, or other factors as deemed relevant by the director;   Shall, on behalf of the state, contract for the purchase and installation of that subset of water-measuring devices according to the priority system required by this Code section, and no charge shall be made to the permittee for such costs. However, when the division assesses the site or attempts to install such water-measuring devices and finds that the site lacks the withdrawal or irrigation infrastructure, the division shall document such withdrawal or irrigation infrastructure conditions and notify the permittee in writing that a state funded water-measuring device or devices could not be installed and that a device or devices are still required. After the expiration of five years, such permittee shall be responsible for having an acceptable type of water-measuring device installed and placed into operation and all associated costs. The permittee shall notify the division in writing once the installation has occurred. The division shall approve or disapprove the installation within 60 days of the date of notification;   Shall, at monthly intervals, read an appropriate proportion of water-measuring devices installed for measuring farm use of ground water and compile the collected data for use in meeting the purposes in paragraph (1) of this Code section, and the division shall communicate in advance with private property owners to establish reasonable times for such readings. In the event that a permittee's water-measuring devices are selected for monthly readings, the permittee may choose to perform those readings and transmit that information to the division; and   Shall issue an annual progress report on the status of water-measuring device installation.  Any person whose permit for agricultural water use was issued before July 1, 2003, and who desires to install a water-measuring device at no cost to the state may do so, provided that the permittee shall have an acceptable type of water-measuring device installed and placed in operation at each point of permitted withdrawal and the permittee shall notify the division in writing once the installation has occurred. The division shall approve or disapprove the installation within 60 days of the date of notification.   The division shall audit a subset of reported water-measuring device readings submitted by permittees for the purpose of understanding and improving the accuracy of such readings.   Regarding all permits for which a water-measuring device is installed, regardless of when the permit was issued, the division shall contract for the annual reading of such water-measuring devices. The division shall require each contractor conducting such annual readings to transmit complete and accurate data required by the division to the division annually.   Any person who desires to commence a farm use of water for which a permit is issued after July 1, 2003, shall not commence such use prior to receiving approval from the division that such person has installed an acceptable type of water-measuring device installed by the commission at each point of permitted withdrawal. The permittee shall be responsible for all such costs.      Employees, contractors, or agents of the division are authorized to enter upon private property at reasonable times and upon reasonable notice to conduct the duties of the division under this subsection.   The division shall contract for any maintenance, repair, or replacement of water-measuring devices installed pursuant to this Code section where maintenance, repair, or replacement is required to ensure that such water-measuring devices accurately reflect the amount of water used, and no charge shall be made to the permittee for such costs.   If the division determines that the permittee or the permittee's employees, tenants, licensees, or agents have willfully dismantled, sold, relocated, or removed any water-measuring device installed pursuant to this Code Section, the permittee may be subject to enforcement action by the division, including but not limited to imposition of civil penalties.   Any reports of amounts of use for recreational purposes under this part shall be compiled separately from amounts reported for all other farm uses.     Nothing in this Code section shall be construed as a repeal or modification of Code Section 12-5-104.   In addition to the other provisions of this Code section, there shall be established three categories of farm use ground-water withdrawal permits: active, inactive, and unused. The rules and regulations implementing this subsection shall provide without limitation for the following:   An active farm use ground-water withdrawal permit means one that has been acted upon and used for allowable purposes;   An inactive farm use ground-water withdrawal permit means one where the permit holder has requested inactive status in order to retain ownership of the permit for possible future use or reuse. Inactive permits shall be retained by the permit holder without modification;   An unused farm use ground-water withdrawal permit means one that has never been used for allowable purposes. Unused permits expire after two years unless changed to active or inactive status by notification to the director. Unused permits shall not be transferred or assigned to subsequent owners of the lands as provided in paragraph (1) of subsection (b) of this Code section;   An inactive farm use ground-water withdrawal permit shall be reclassified to active when the permit holder has given the director 60 days' written notice and paid any applicable fees in accordance with subsection (a) of this Code section; and   The director shall, via certified mail, return receipt requested, contact, or cause to be contacted, any person who holds a permit that the director has determined is unused. The notification shall include the permit identification and information regarding the classifications and procedures for changing classifications. The permit holder shall have 120 days to respond after which the director shall issue a second notice via certified mail, return receipt requested. Two years after the date on which the director first notified the permit holder via certified mail, return receipt requested, of the unused status determination of the permit, the director shall revoke the permit if the permit holder has not requested that the unused permit be reclassified as inactive or active.      (b.1) (1)The division shall have the duty of implementing a program of measuring farm uses of water in order to obtain clear and accurate information on the patterns and amounts of such use, which information is essential to proper management of water resources by the state and useful to farmers for improving the efficiency and effectiveness of their use of water, meeting the requirements of subsections (b) and (b.1) of this Code section, and improving water conservation.   The division:   (Ga. L. 1972, p. 976, § 13; Ga. L. 1973, p. 1273, § 26; Ga. L. 1982, p. 2306, § 1; Ga. L. 1988, p. 1694, § 8; Ga. L. 2003, p. 813, § 3; Ga. L. 2006, p. 237, § 4/SB 191; Ga. L. 2010, p. 732, § 6/SB 370; Ga. L. 2018, p. 974, § 4/SB 451; Ga. L. 2019, p. 1056, § 12/SB 52.)    The 2019 amendment,  effective May 12, 2019, part of an Act to revise, modernize, and correct the Code, revised punctuation and language in subparagraph (b.1)(2)(D).   Cross references.   - Surface water withdrawal permits, § 12-5-31.   Code Commission notes.   - Pursuant to Code Section 28-9-5, in 2003, "paragraph (5.1)" was substituted for "paragraph (10)" in the first sentence of subsection (a).   Pursuant to Code Section 28-9-5, in 2006, "April 20, 2006," was substituted for "the effective date of this subsection" in the fourth sentence of subsection (a) and in the second sentence of paragraph (b)(1), and "April 20, 2006," was substituted for "the effective date of this paragraph" in paragraph (b)(2) (now paragraph (b)(3)).   Pursuant to Code Section 28-9-5, in 2010, a semicolon was substituted for a colon at the end of paragraph (d)(3) and "and" was added at the end of paragraph (d)(4).   Editor's notes.   - Ga. L. 2010, p. 732, § 1/SB 370, not codified by the General Assembly, provides: "The General Assembly recognizes the imminent need to create a culture of water conservation in the State of Georgia. The General Assembly also recognizes the imminent need to plan for water supply enhancement during future extreme drought conditions and other water emergencies. In order to achieve these goals, the General Assembly directs the Georgia Department of Natural Resources to coordinate with its Environmental Protection Division, the Georgia Environmental Facilities Authority [now known as the Georgia Environmental Finance Authority], the Georgia Department of Community Affairs, the Georgia Forestry Commission, the Georgia Department of Community Health, including its Division of Public Health, the Georgia Department of Agriculture, and the Georgia Soil and Water Conservation Commission to work together as appropriate to develop programs for water conservation and water supply."   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 article on 2010 amendment of this Code section, "Conservation and Natural Resources," see 27 Ga. St. U.L. Rev. 185 (2010). For note, "The Problem of Reallocation in a Regulated Riparian System: Examining the Law in Georgia," see 40 Ga. L. Rev. 207 (2005).   JUDICIAL DECISIONS   Inapplicable to city's application for groundwater withdrawal permit.    - O.C.G.A. §§ 12-5-102(c) and12-5-105(b)(4) were inapplicable to a consideration in a city's application for a groundwater withdrawal permit because there was no showing that an emergency period of water shortage existed. City of Rincon v. Couch, 276 Ga. App. 567, 623 S.E.2d 754 (2005).   RESEARCH REFERENCES   Am. Jur. 2d.   - 78 Am. Jur. 2d, Waters, § 219.