Jackson County’s lawsuit over the Bear Creek Reservoir can proceed.
A spokesperson for the office of Judge Joe Booth said Booth has ruled against a motion presented by the Upper Oconee Basin Water Authority seeking to dismiss the suit.
Jackson County filed suit to force the basin group — of which it is a member — to recalculate the yield of the reservoir, which is jointly owned by Jackson, Barrow, Athens-Clarke and Oconee counties. The daily yield, calculated by the authority’s engineers and approved by the Environmental Protection Division, is the basis for determining how much water each partner can withdraw from the reservoir every day.
When its own consultants concluded that the yield of the 505-acre lake is actually less than the 58 million gallons per day declared by the authority, Jackson sought a recalculation by a third, “neutral” party.
The authority refused. Jackson County hired Mike Bowers and filed suit based on wording in the intergovernmental agreement under which the reservoir is managed, the gist of which is a demand to determine the true capacity of the reservoir.
The authority fired back with the motion to dismiss, the major claim of which was that the authority had sovereign immunity from lawsuit. The authority also argued that the suit provided no means by which Jackson County might gain relief.
Jackson County argued that the intergovernmental agreement forming the authority gives each member the right to sue over violations of the agreement — and declared that the authority had violated the agreement by not recalculating the reservoir yield after the drought of 2007.
Booth’s rejection of the motion to dismiss clears the way for the suit to go to court. As of press time, Booth had not published the written version of his findings, his reasoning for the decision remains unclear.
“I haven’t seen it,” said Eric Klerk, manager of the Jackson County Water and Sewerage Authority. “I just got an e-mail saying ‘Great news, Judge Booth is denying the motion to dismiss’ and that we should have a copy of the order soon.”
The crux of the suit now is whether the intergovernmental contract obligates the authority to recalculate the yield after the recent drought — the worst drought since records have been kept. Jackson County’s position is that the language of the agreement clearly requires that recalculation.
Jackson’s consultant places the yield of the reservoir at 24 mgd — 41 percent of the amount upon which daily withdrawals are allocated. Should Jackson prove its case in court, there will be huge ramifications, particularly for Oconee and Athens-Clark, which often use all or nearly all of their current allocations.
That could work to Jackson County’s benefit. When those two counties use more than their entitlement share in any given day, they’re dipping into the water owned by the other two counties, particularly Jackson. Jackson wants to be paid for that water, and if its lower yield estimate is factual, the other counties have used a lot of water that belongs to Jackson County.
