A three-judge panel of the Georgia Court of Appeals will convene at noon Thursday on the sixth floor of the State Judicial Building in Atlanta to hear Jackson County’s appeal of Judge Joe Booth’s ruling in the county’s lawsuit against the Upper Oconee Basin Water Authority.
Jackson County originally filed suit to force the four-county authority — of which it is a member — that owns the Bear Creek Reservoir to recalculate the reservoir’s daily yield following the historic drought of 2007-08. The suit contends that the yield, which was calculated at the time the reservoir was constructed and was accepted by the Georgia Environmental Division, is greatly overstated and is, in fact, about 40 percent of the 58 million gallons per day (mgd) declared as its “established yield.” It also argued that the intergovernmental agreement (IGA) among the four member counties required a recalculation following that drought.
But Booth ruled last October that the authority performed as required by the IGA, that the IGA did not require a recalculation following the 2007-08 drought, and that the wording was not intended to require the reservoir’s yield be reduced based upon any future drought.
In its appeal, Balch & Bingham LLP, Atlanta, reiterates the authority’s contention that the IGA does require recalculation. “The IGA defines Established Yield in Section 306(a)a(1) as follows: Established Yield means the maximum rate of withdrawal which can be sustained during critical dry periods as established by a mathematical simulation of the reservoir operation as it would have occurred during the worst historic drought for which applicable stream flow records are available,” the county’s brief argues. “The IGA’s tying the Established Yield to an ongoing analysis of stream flow records shows the parties’ intent to adjust the Established Yield if a worst drought occurs during the IGA’s fifty year term, which happened in 2007-08.”
The established yield is critical only in times of drought, when managers of the 505-acre lake cannot pump water into the reservoir because of low water levels in the Middle Oconee River. When that happens, the other three counties — Clarke, Barrow and Oconee — can take their full daily allotments based on the 58 mgd permit, potentially emptying the reservoir that Jackson County argues actually has only a 24-mgd yield. In the process, those counties, Jackson alleges, use water that belongs to Jackson County without paying Jackson County.
Jackson County seeks a court ruling requiring the determination of a new yield based on the 2007-08 drought or a reversal of the trial court and the remanding of the entire case for a trial on the issue of whether the IGA requires a recalculation of the established yield.
Judge Anna Burnes will preside over the hearing. The other two judges are Michael Boggs and Lisa Branch.