Superior Court Judge Joe Booth will decide whether Jackson County’s lawsuit against the Upper Oconee Basin Water Authority should proceed.
Jackson County officials are suing the Upper Oconee River Basin Water Authority to force it to recalculate the reservoir's capacity. Jackson official say the lake contains less than half as much water as originally figured, which means in times of drought, the lake cannot will run dry much sooner than expected.
Judge to rule on motion to quash reservoir suit
The county is suing the authority — of which it is a member — to force it to recalculate the yield of the Bear Creek Reservoir, which the authority manages, under the belief that the lake’s actual capacity is less than half what the authority claims. Should Jackson County prevail, all assumptions upon which Athens-Clarke, Barrow, Oconee — and Jackson — counties use the water will be null and void. That has huge financial ramifications, particularly for Barrow and Athens-Clarke.
Booth listened to arguments last Wednesday on a motion by the authority to dismiss the suit. He did not indicate when the parties can expect a decision.
Andrew Ekonomou of the Atlanta law firm Ekonomou, Atkinson & Lambros LLC argued that the authority has sovereign immunity and that Georgia law did not allow declaratory judgment as requested in the suit.
Former Georgia Attorney General Mike Bowers of the Atlanta law firm Balch & Bingham LLP countered those arguments on behalf of Jackson County and its water and sewerage authority.
At stake is how much water each of the counties can count on each day during the 50-year term of the intergovernmental agreement that created the authority and allowed for the building of the reservoir. The current “established yield” of 58 million gallons a day (mgd) is the basis not just for water use projections among the four owners, but also of of financial transactions. Barrow County, for example, has contracts requiring it to provide water to other entities.
Jackson County hired a consultant who calculated that the actual yield of the reservoir is less than half that approved by the Environmental Protection Division. The intergovernmental agreement calls for the yield to be recalculated after any major drought; Jackson’s position is that a recalculation is due because of the ongoing drought.
At the heart of the suit is Jackson County’s contention that because the actual yield is only 24 mgd, during days when other counties used more water than their proportionate shares, they were using Jackson County’s water — for which Jackson wants to be paid.
Ekonomou characterized the authority’s suit as demanding that the court order the authority “to provide member counties with less than half the water permitted by the EPD,” that “Jackson County is saying ‘we are entitled to too much water.’”
He also repeatedly challenged the notion that the authority should alter a yield “calculated and approved” by the EPD.
“The EPD, not the authority calculates the yield,” Ekonomou said. “We cannot go around monkeying with the gauge.”
He used charts to demonstrate that, on an annual average, none of the member counties had yet come close to using its entitlement share of the water — Jackson County in particular.
Bowers focused mostly on the legal points. He pointed out that the intergovernmental contract allows members to take legal action for breach of conduct. He offered state law he said countered the authority’s other points of the motion to dismiss
“The bottom line is, is the water we can get what EPD says it is, or is it the established yield they (Jackson County) calculate?” Bowers asked.
As for the sovereign immunity argument, “that won’t get traction,” Bowers told the judge.
“We have a right to have this managed properly,” Bowers said. “We have committed to 50 years and we have a right to have it done right.”
Booth listened to arguments last Wednesday on a motion by the authority to dismiss the suit. He did not indicate when the parties can expect a decision.
Andrew Ekonomou of the Atlanta law firm Ekonomou, Atkinson & Lambros LLC argued that the authority has sovereign immunity and that Georgia law did not allow declaratory judgment as requested in the suit.
Former Georgia Attorney General Mike Bowers of the Atlanta law firm Balch & Bingham LLP countered those arguments on behalf of Jackson County and its water and sewerage authority.
At stake is how much water each of the counties can count on each day during the 50-year term of the intergovernmental agreement that created the authority and allowed for the building of the reservoir. The current “established yield” of 58 million gallons a day (mgd) is the basis not just for water use projections among the four owners, but also of of financial transactions. Barrow County, for example, has contracts requiring it to provide water to other entities.
Jackson County hired a consultant who calculated that the actual yield of the reservoir is less than half that approved by the Environmental Protection Division. The intergovernmental agreement calls for the yield to be recalculated after any major drought; Jackson’s position is that a recalculation is due because of the ongoing drought.
At the heart of the suit is Jackson County’s contention that because the actual yield is only 24 mgd, during days when other counties used more water than their proportionate shares, they were using Jackson County’s water — for which Jackson wants to be paid.
Ekonomou characterized the authority’s suit as demanding that the court order the authority “to provide member counties with less than half the water permitted by the EPD,” that “Jackson County is saying ‘we are entitled to too much water.’”
He also repeatedly challenged the notion that the authority should alter a yield “calculated and approved” by the EPD.
“The EPD, not the authority calculates the yield,” Ekonomou said. “We cannot go around monkeying with the gauge.”
He used charts to demonstrate that, on an annual average, none of the member counties had yet come close to using its entitlement share of the water — Jackson County in particular.
Bowers focused mostly on the legal points. He pointed out that the intergovernmental contract allows members to take legal action for breach of conduct. He offered state law he said countered the authority’s other points of the motion to dismiss
“The bottom line is, is the water we can get what EPD says it is, or is it the established yield they (Jackson County) calculate?” Bowers asked.
As for the sovereign immunity argument, “that won’t get traction,” Bowers told the judge.
“We have a right to have this managed properly,” Bowers said. “We have committed to 50 years and we have a right to have it done right.”
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