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HomeMy WebLinkAboutResolutions - No. 631( COPY) RESOLUTIOI'T NO. 631. CITY COUNCIL, CITY OF LODI. WHEREAS, the City Counc:i 7 did, by Resolution No. 627, direct the City Attorney to prepare, file and present to the Federal Power Commission a protest against the granting of a preliminary permit to the East Bay Municipal Utility District for a Power Project on the Miokelumne River; and UREAS, the City attorney has so prepared such a protest, in- cluding supporting data, and has transmitted the same to this Council; and WHEREAS, the City Council has been advised by responsible en- gineers that the present and proposed acts an3 operations of the East Bay .unicipal Utility District as now conducted unser Project No. 567, and proposed to be conducted under Project ]To. 1134, axe and will con- tinue to oe destructive of the continuance of the present water supply for the inhabitants of the City of hodi and of the rural communities adjacent thereto, because of the alteration by the said District of the natural flow of the Mokelumne River and the resultant effect upon the percolating waters from the said river which heretofore have re- plenished am -maintained the underground water table from which the City of Lodi and the entire rural community thereabouts pumps its municipal, domestic arid irrigation water supply; and also, because of the complete sequestration away from the basin of the said river of large quantities of water, which otherwise would flow clown the natural channel of the said river and be of great 'benefit in maintaining the said underground water table; and further, because of the destructive effect, upon the proposed hydro -electric power project of the City of Lodi on the said :okalunine River, of tli.e operations of the said. East bay a,Jun ici pal Utility District in the manner proposed unless the said District shall be compelled to so operate•its Project Works whereby a reasonable and definite quantity of water will be assured to flow over the said property of the City of Lodi; and Exhibit No. 1 1. WHEREAS, the City Council. has been edvised by the attorneys representing the City- of Lodi that the appropriative vested rights of the said City in its municipal water supply are in jeopardy and because of such advice the City Council have heretofore been compelled to ex- pend large sums of money for legal and engineering services and invest- igations in preparing to defend its rights through r Court proceeding, which has been 3e for trial in the Superior Court of San Joaquin County, California, on April ist, 1931 in case No. 22415 and whereby the said City of Lodi will ne further compelled to expend additional sums of money in the prosecution of the said suit; and further, that the ripar- ian vested rights of the said City of Lodi :in its Power Project property, on the o e1 mine River as i2ereinafter recited, are also in jeopardy and because of such advice the City Council have heretofore been compelled Lo expend large sums of money for legal and engineering services and investigations in defending its riU•hts through Court pro.eeedi.ngs and is now expending additional monies in such defense; and WHEREAS; the attorneys representing the City of Lodi in the aforesaid legal proceeding in case Ido. 22415 did offer to do equity in the premises and to withdraw the said injunction suit, providing, the defendants thereto would agree to finance the construction end operat- i.ng costs of the hydraulic works proposed by the City of Lodi, together with the delivery thereto of e reasonable quantity of water for the maintenance of the said works and thereby ,;permit the said defendants to operate in the manner proposed and which e ,ttity offer was rejected without reasonable explanation; and tf' REAS, Lhe City of Lodi did acquire from the Colorado Power Cora any a power site on the Iuoke;lumne River and thereupon proposes to construct and operate a municipally owned hydro-electric riparian power plant in conjunction with the present existing municipal Electric dis- tributthon system of the City of Lodi, and thereafter, the said Council instituted legal proceedings in the Superior. Court of Calaveras County, California, in case No. 1642 seeking to enjoin the East Say Municipal Utility District, from its operations upon said river in the manner pro .G-o sed; and 2. ViTER.SAS, the Last Bay Muni.cipa 1 Utility District subsequently brought an action in the said Calaveras County Superior Court, in case Fo. 1567., wherein the said District sought to condemn the right to op- erate its diversion works in the manner proposed by the said District and to divert to the San Francisco Bay Region approximately one quarter of the average annual flow of the said Mokelumne River; and WHEREAS, the Superior Court of Calaveras County, California, did enter a judgment permitting the said East Bay Municipal Utility District to so operate its diversion works in the manner proposed and to divert sway from the basin of the Mokelumne River the quantity of water as aforesaid; and WHEREAS, the City of Lodi has taken an appeal from the judgment in the said case No. 1661 to the District Court of Appeal of the State 04' Cwl?-ror.nia, and the said appeal is now pending and undecided; and ;i'B7iREJS, the Colorado Power Company did, prior to its grant to the City of Lodi, bring an action in the Superior Court of Calaveras County, California, in case No. 1591, seeking to enjoin the Pacific Gas and Electric Company froth d'onstructing and. operating its works in the manner proposed under. Federal Power Commission Project No. 137, and thereafter, the..judgment entered it the said suit makes it manda- tory for the said Pacific Gas and Electric Company to release at the tail -race of the Electra Power House and return to the Mokelumne River not less than 475 cubic feet of water per second so long as water is available so to do, and further, that the said judgment obtained by the Colorado Power Company does, because of the fee grant to the Cdty of Lodi by the said. Colorado Power Company, operate to the benefit of the said City; and WHEREAS, the attorneys representing the City of Lodi in the aforesaid legal proceedings in cases Mo. 1642 and. No. 1661 did offer to do equity in the premises and to withdraw the said. injunction case Yo. 1642, providing, that the East Bay Municipal Utility District would agree to a reasonable schedule of water releases at its diversion works, and to be of an average daily amount materially less than that to be re - 3. turned to the _oi e1 m•!ne River above the said diversion works of the East 3ay i!!iunicipal Utility District, by the Pacific Gas and Electric Company and which equity offer was flatly rejected by the said District without explanation; and WHEREAS, there are,now pending, in the Superior Court of Sari Joaquin County, California, numerous consolidated riparian injunction suits, involving in excess of'dne'h.undred and fifty plaintiffs and fifty thousand acres of land riparian to the Mokelunme River in which the East Bay Municipal Utility District is named as a defendant; and WHEREAS, "The Federal Water Power Act", in Section 10, at sub- section (c), provides, "Tht the Licensee shall conform to such rules and. .regulations as the Commission may from time to time prescribe for the protection of life, health and property", and further, Article 18 of licensed Froject No. 567, provides', "The, operations of the Licensee, so far as they affect the use, storage and discharge from storage of the waters of the Mokelumne River shall at all times be controlled by such reasonable rules and. regulations not materially interfering with the use of the water by the Licensee for its municipal and domestic needs as the Commission may prescribe in the interest of 'benefi- cial public uses"; and WHEREAS, the City Council is advised, and. therefore believes, that the present .::.nd proposed acts and operations of the East 3ay Nsuni- cipai Utility District are arid will continue to he destructive of the life, health and property of the inhabitants of the San Joaquin Valley Area. contiguous to the Mokelumne River, including the area of the City of Lodi, arid further, that the Commission could prescribe reasonable regulations in the interests of beneficial and prior public uses and rights, as aforesaid, not materially interfering with the present or fu.tore 'needs of the East Eaj% Lunici.pal. Utility District and the area now embraced within the said District; and WEIF]dEAS, the arbitrary acts of the East 3c.y :i,::unicipa,l Utility District have been perpetrated u_)on the inhabitants of the .okelumne Riser Area and the City of Lodi without their consent and against their will, and thereby nave necessitated the expenditure of large sums of 4. money in the protection of their prior Jested rights, and further, such acts have caused ;.,na will continue to cause, if prosecuted as hereto- fore, intense animosity toward the said District by the people whose property has been unnecessarily jeopardized and. who, through priority of possession, are entitled to protection from Federal and State agen- cies without being subjected to litigation anti the resultant financial burden which they at, this time can ill- afford to stand; NOW, THEREFORE, in consideration of the premises as aforesaid and of the desire of this Council to preserve, if possible, friendly relations between the peoples of the City of Lodi tnd the contiguous community and of the Fast Say Municipal Utility District, together with the economic survival and continued productivity of the area affected by the waters of the Nokelumne River, aithout further and continued. litigation and the expense attaching Lhereto, this protest is being sub- mitted to the Federal Power Commission in the belief that such an im- partial Federal. Agency will cause to be remedied the injustices as afore- said., through imposed limitations upon the operations of the Licensee unde Pr.ojectsNo. 567 and No. 1134 in accordance with the Commission's res- ervations recited in the ACT itself and the issued License, as aforesaid.. The engineering advisors of this Council have wade an exhaustive study of the surface and percolating water flows of the 1oke1unne River which indicate that the flow of the said river is sufficient to provide for the requirements of the lands affected by such flow, toether with the maximum diversion proposed by the East Say Municipal Utility :District, conditional, that in periods of water shortages, due to sub -normal rain and snow fall that the said District sub -ordinate its maximum diversion, under its present appropriation, to the co-ordination and draft from its M.oelumne River and local :L';.,et Bay District storage. In compliance with the proceedure recited in the fublieh.ed no.ice pertaining to the issuance of a preliminary permit under Project 10. 1134, this Council aoes herewith request that a hearing oe had thereon, and predicates such a request upon certain analysis and conclusions deduced from me data herewith attached and made a part of this protest and here - 5. inafter referred to by reference to Exhibit nurnaers. The primary facts upon which the Council submits its request for a hearing in the case of Project :Eo. 1134, are of necessity cor- relative wi th those affecting Project io. 567, therefore the said analysis and conclusions are submitted for the consideration of the Federal Power. Commission, irrespective of a detailed classification as to Project Pumbers, as follows, to -wit: (1)Section 4, suo-section (e) of the Federal Vater Power Act recites, "---- That upon the filing of any application for a prelimin- ary permit ---- the Commission, before granting such application, shall at, once give notice of such application in writing to any State or Municipality likely to be interested in or affected by such application, it No such notice was ever giver! to the Municipality of Lodi to do with eiiher Project No, 567 or Ko. 1134. The status of the City of Lodi. as a protestant, was voluntarily sought from the Commission in the first paragraph of the questionaire attached to letter dated Noveriuer 9, 1928, (Exhibit #9), and which query was superficially ar.d unsatisfactorily answered in the first patagraph of the reply letter dated December 3rd 1928, (Exhibit #10) . It is not our understanding of the said section that a iiunicipality must necessarily be in application conflict before be- ing notified as uforesaid. The section further provides that a notice shall oe published of such application in a newspaper published in the county or counties in which any part of the proposed Project is located or, "the lands affected thereby are situated". In so far as this Council is advised no such notice was published in the County of San Joaquin within which is located the City of Lodi and a portion of the District Project Works, described in (Exhibit #4). (2) The status of the City of Lodi as a Mun cipa1ity, its loca- tion, population, assessed valuation, economic dependence, civic and educational facilities, et -c., together ai.th tht source and use of its water supply and the effect o±.the operations of the East Bay Municipal Utility District, if operated in the manner proposed, are recited in the 6. complaint of the City of Lodi, (Exhibit #21); whereas, a proposal, by the City of Lodi, to do equity in the premises and thereby permit of the dismissal of the said suit, is recited in a resolution of the City Council (Exhibit #22) and more fully set fotth in (Exhibit #50). (3) The title status of the ;t'.okelurine River riparian fee proerty of the City of Lodi, conveyed by grant deed from the Colorado Power Company, and upon which property the said City proposes to construct and operate a'hydr.o-electric power project to be used in conjunction with its present municipal electric distribution system, is recited in (Ex- hibits #23-24-25-26-27 and 28) ; wherein, the terms of the grant, torcethe.r with the necessity for and dedication to the public use, and author- ization to prosecute or defend litigation for the protection of ripar- ian rights thereto are enumerated; whereas, the physical and legal sta- tus of the said riparian property, its location, description, economic ada.ptablii.ty for hydro-electric power generation, lawful ri,`rht to the use bf the natural flow of the i„okelurene River thereuvon and the result ant damage to the said property because of the threatened acts of up- stream anoropriators, if ; ermittec to construct their storage and diver- sioOa works and to operate in the manner pr000sed, arc recited in the Judgment of the Colorado Power Company, (Exhibit /#29), and wherein, de- fendant, Pacific Gas and Electric Company, "shall so operate its reservoirs, canals and power houses that, for each calendar day, the average rate of discharge of water from natural flow and storage into the channel of the Cain Pol'eluune River, at or ab)ve the tail-race of the Electra Power House, from the T',orth Forh of the ;.okeluinne River, oy way of the natural chaonel of said ;`?Orth For and defendant's aforesaid canals, shall be not less than 475 cubic feet of water. per Second, whenever conditions of rain and snow fall and storage shall permit, and, at all other times, shall a-p roxiaote such standard of operation as nearly as such conditions will permit;" together with the cor;piaint of the City of Lodi, (Exhibit ;i"30), nd also with (Exhibit /T31), the complaint, in condemnation of the .3o.;r,.lii.ilnici,_al Utility District, wherein it So_'ht t0 acr;uire the ri.r-ht t0 operate its project works in the anner and to the extent therein 7. Proposed. The procc.edinas in .c,he two aforesaid suits, (Exhioits 00 and #31), were concurrently tried in the Superior Court of Calaveras County, California. Judgment was subsequently entered in he condemnation suit of the said Distrjct, and front which judgment the City of Lodi has ta.en an appeal. In its award the Court found from the evidence, "that with the East 3ay Eunicipal Utility District in operation Es proposed, regulating the flow of the stream ad releasing storage water from the Pardee Dani, there would at all times be sufficient water the proposed site of Lodi's power plant to operate a plant during the entire year, and said plant would generate more electrical energy than could be generated with a plant as proposed by Lodi using the natural or unregalated flow of the river. The enaineers were in accord that it would be an advantage to the proposed Lodi plant to have the stream regulated as set forth in the method of operation described in the complaint, but the witnesses for defendants testified that unless the regulated Ilow of the stream wa8 guaranteed in some manner, so that there would be assurance of the floify in the stream, that the feasibility of their project would be destroyed. Unless the operation should be in some manner unreasonable tie proposed recrulation of the flow of the stream and releasing the water for po,er and other purboses as conI,etalated by it will be an advantage to the defendants. It is provided in the license granted to plaintiff bv the Federal Power Commission that the oneration byiaintiff as to the storage and discharge from storage of the waters of thc. ljbkelumne River shall at all times be controlled hy reasonable rules and regula- tiODS prescribed by the Commission and in the interest of the waters of said river fnr power and other beneficial purposes. I do not apprehend that East 3ay ::-anicipal Utility District will operate its dams. in any other manner than as set forth. in its complaint as it would naturaaly c3ire to keep its own plant in operation". It was ehovn from the evid- ence that ,,ith the dS Sj n1CL01 Utility District operating in the ,,anner and to the extent proposed, in accordance with its applications cermits of the California Divison of Water 2-1,3hts, (Exhibits 8. #5-6 and 7), the said District would have the individual ri8ht, each year, to store for power use only, oporoxin_a_tely 342,000 acre feet of water or the equivalent of a continuous flow through its power plant, for each calendar day, of approximately 475 cubic feet per second from storage only, regardless of any direct power water c9iversion from the natural flow of the said river, or the equivalent, for each cilendar days, of the minimum release at Electra, above the diversion works of the East Bay 1'unici.pa.l Utility District, recited in the Judgment as afore- said. It was further shown from the evidence, as recited in cert An exhibits of the said. District and herewith designated, (Exhibits #34- 35 -36 -37 -and 38), together with testimony of witnesses of the East Bay Municil)a1 Utility District, that the annual mean run-off of the I okel- umne River for the period from 1905 to 1928, w_ s 002,000 acre feet; that the annual . ,..:.n flow, for each cub.lei:!U.ar day, n:'oposed to be used in the City of Lodi Power Plant, if operated only ,Ni.th the natural or unregu- lated flow would be 551 cubic feet per second; that wi th the municipal draft to the East Bay District of 50 E.G.D. or less, the annual mean flow, for each calendar day, of power 'pater releases by the District, e t the t ,i.l.-race of the .Hardee Power Flant and thus a.vai.l ,ble for use in the ?ower plant of the City of Lodi, would be not less thy:._ 715 cubic feet 2Fr second; that with the mi)nicipt•l draft of 125 Y.G.'l. or less tii.e annual ;;lean flow, for each calendar d Ey, would be not le=:5 the..n 633 cubic feet per second; and. that with the ,uniojya l drrft of 200 G.D.,..... or less the annual s,ean flow, for each calendar day, would be not less than 550 cubic feet per second; and that of the fore, oi.n4 respective ra- i..:a. 3es, :.he yllean flow, for each. calendar day of those .... :de dur'in+, the moths of lowest ..a tura1 stre<.... flow, between! June thirtieth. and. Jr'.nu- :_ry first, with ;-ie rr.unic_:.al draft of 50 ,...r„De Of less, would oe not less tdan 575 cubic feet per second; that with. the municipal draft 125 1_.6.D. the o!.' less, the _. rn .'low, for each calendar day, d.ur r!._/said. period, would be not less than 155 cubic feet persecond; .uul that with the said �. municipal draft 200 or less, the mean flow, for each calendar day, during the said period, would be not less than 345 cubic feet per second; provided, that on January first of each calendar year the District would have accumulated in storage in the Pardee Reservoir, one hundred thousand acre feet of water from all stream flow entering the said Pardee Reservoir, and that all of such stream flow into the said reservoir, between July first and December thirty first next pre- ceding the said January first of each year, except that so diverted in accumulating the said ,one hundred thousand acre feet of storage, would be passed through the said Pardee power house during the said July first to December thirty-first period. (4) Pending the Judgment decree in the injunction case of the City of Lodi, (Exhibit #30), which stands submitted to the Court, the East day ei.unicipal Utility Di strict is not as yet and may not becom- pelled to operate its works as in the manner aforesaid, and which said operation contemplates the serluestration of the waters ofthe hokelumne River and their diversion to the East 3ay District only as the progress ive needs of the present area of the said District may necessitFte; where- as, this Council is informed and therefore believes, that through the Senate 3ills numbered 34 to 40, inclusive, now pending before the California State Legislature, the said District is now proposing to en- large the area of the present East 3ay Yunicipal Utility District, and further is now proposing measures whereby additional consumers of water, without the confines of the said District, may be incorporated within the operations of the said District. Of the aforesaid Senate 3iiis, '.;hose numoered 39 and 40 are declared to be, "urgency measures necessary for the immediate preservation of the public peace, health and safety within the meaning of Section 1, of Article four of the Constitution of the State of California, and shall go into immediate effect. The follow- ing a statement of the facts constituting such urgency and necessity: various county water districts and their inhabitants are now faced with imrending water shortap.es, and the peace, health, safety and welfare of. the citizens of this State residing therein are dependent neon the im- mediate acquisition of an adequate and pure water supply for their pub- lic and domestic requirements, which can only be secured from certain 1C) existing municipul utility districts. Said clunicipal utility districts are at present without authority to enter into approprite :_rrangements for supplying said citizens and districts with water, but said amend - rents will enable municipal utility districts to provide for their public and domestic requirements and avert impending w,:4ter shortages". 2he East Bay :Junicipal lIt.ility District, through its execution of e water delivery contract with the City and County of 3an Francisco, (Exhibit #49), wherein the said District agrees to sell are) deliver to the said City not to exceed 20 :...G.D. of what is purported, by certain officials of the said District, to be local water or water derived from other sources than the hbkt,lume River, (Exhibit -#46), has thereby indi- cated its disposition to evade its pledge to the inhabitants of the Lodi Community that water from the 1;okelumne River would be diverted only to satisfy the urgent and ..)rogressive needs of the said District. The appre- hension of the City of Lodi to do with the execution and operation of the aforesaid contract is indicated in (Exhibits #40 to 48 inclusive). This Council submits that the peace, health, safety and welfare of the citizens of the City of Lodi and the rural community adjacert thereto are entitled to a prior consideration, in so far as the taking of the waters of the Yb.kelumne River are conceried to such other and sufferinry, communities, and that the selling and delivery of water to t.::e City and CoJ1;ty of San 7Tancjsco by the said. District as aforesaid is contrary in principle to the implied ;intent as recited in Applica- W#6WfM#4044WWW#WWOMWIVAW5." tion #4228 of the said District to the California Division of dater Rit:hts and its resulting Permit #2459, article 6 (Exhibit #5), and to the declaration recited in the District's Complaint in case #1661, (Exhibit #31), at page 6, lines 2 to 4 inclusive. The letter (Exhibit #13), of Mr. Geo. Otis Smith, dated October 16th 1028, parraph 3 at line 14 and paragraph 4 at lines 2 and 5, to- gether, with the subsequent and pertinent fcts recited in the Geological that :31,1rvey Water-3upply Paper #619,/"The problems connected with the detenaination of the source and quantity of the ground -water supply of the 1:_okelumne Area are so co!Tplex that some of tIlem are not yet entirely 11. solved. The very nature of the facts concerning under -ground water sup- plies is such that patient and careful research over a long period is necessary 'before they can oe interpreted with exactness. A decision on so paramount a question as the effect of the Mokelumne River upon the ground- water supply of the Mokelumne Area would be premature at this ;;ime. The decline of the water table in the Mokelumne Area is an established fact. Recognition of the great value of 'both surface and. ground -water for ir- rigation in the Mokelumne Area led the United States Geological Survey, in f i.r,<u!cial cooperation with the East !Say Municipal Utility District, to undertake a survey of the waters of the valley. It was evident that a thorough study of the water problems and the status of the irrigation development should be made in this area in view of the fact, that the hast Bay ii:uni.ci.pal. Utility District plans to divert water out of the i okelumne drainage basin to the East Bay Cities. It is therefore desirable to ascertain the Quantity of water that can be exported without interfer- ing with the .right of the lawful appropriators and riparian users of the natural flowof the Mokelumne River and also to determine to what ex- tent the great underground water reservoir of the area, which supplies 2000 irrigation welts, is dependent upon the Mokelumne River for re- charge", indicate the seriousness of the present and future ground - aster situation in the Mo;:elumne Area as interpreted by an unbiased. agency. In a letter addressed to the Federal Power Commission, dated Povember 9th. 1928, (Exhibit #9) , paragraph nuunber nine of the question- aire, attached thereto , requested certain information to do with the percolating waters of the Mokelumne River. The reply Setter, dated December 3rd 1928, (Exhibit -#10) , paragraphs numoers nine and ten in- dicate that in the opinion of the District Engineer the needs of the East 3ay _:.unici ,ai Utility District take precedence over all other right. attaching to the waters of the Mokelumne River and further that such .knowledge as was had by the said :engineer, to do with the perco- lating waters of the said river, was obviously superficial. There was, at the same time, a letter addressed to the Calif - 12. ornia Division of Water Rights, (Exhibit #11), requesting certain in- formation, particularly to do with the underground water supply of the City of Lodi. The reply letter, dated December 10th 1928, (Exhibit //12), clearly indicates the uncertainty in the m.ind of the Chief of the Division as to what effect the proposed operations of the East Bay Lunicipal Utility District will have upon the percolating and under- ground waters of the Yo3,e1uqine River Area. The lamicipal Permit 15o. 2459, (xhiuit #-5), issued by the Division of Sater Ris.:4hts to the East y::unicipal Utility District, further provides, in article ho. 10 thereof, for the determination of the extent of use of prior vested rights. to the percolating waters- of the hokelumne River. Similar in- formation was sought in a letter addressed to the East 73ay Yunicipal Utility District, dated Yovember 9th 1928 (Exhibit #14), and its reply letter dated 1Tove.ber 15th 1928, (Exhibit #15), paragraph four, indi- cates an obvious unwillingness on the part of the Chief Engineer of the said District to eldLe a definite commitment. (5) In recoe.nition of the existing uncertainty of the effect, upon the undeiNrouod waters of the D.)1(elumne Area, of the leroposed operations of the Eost 3ay .1.1.Unicipal Utility Di strict, as aforesaid, and oa1nc advised by the En:-2ineers of the City of Lodi that such proposed operations of the said District will have a positive and destructive effect upon the said underground waters of the said Area, and in con- sideration of the suggestion ii,ade in Geological Survey Water -Supply Paper -ff619, mhereby the application of surface gravity water to cer- tain arcas contiguous to the Yokelumne River, east of the Woodbridge diversion dam, would assist in maintaining the underground water supply in '611.e ibkelumne 'Basin, this Council directed the City Attorney, (Exhibit #16), to comLunicate mith. ehe Division of Water Riehts (Exhibits #17- 1R-15 ,nd 20) , jla detenine the status of certain existent eJericultul.al applications throuzh which such en area could be irrigated as aforesaid, toether with the possible adaptability of such applications, in -part, to the solution of the water proolem of the City of Lodi. The aforesaid Cold_uications from the Division of Water Rihts general], sube,tantiates 15. the belief: of this Council that an amicable adjudication of the present litigation could be had with the firm cooperation of the proper State and1'ederal.Agencies and thereby avoid a useless economic waste and the eventual conversion of what is now one of the most thickly settled and ;productive rural districts in the United States. to an. area useful only for the production of such products as may be grown without irrigation. The history of the Owens River Talley nay in this community be repeated, and even in a more sinister manner. (6) The Act of Congress, approved December. 19th 1913, wherein the so-called Ketch Hetchy Grant was made to the City and County of San Fran- cisco, the Grantee, amply end firmly and definitely provided for the pro- tection of the prior rights of the rodesto and Turlock irrigation dis- tricts in no uncertain or evasive terms. Excerpts of the Act, (Exhibit -61), recite that the said districts jointly, and not exceeding a total coioined eventual area of 300,000 acres, shall at all .rimes, prior to diversions to the City of San Francisco, or elsewhere by the said city, receive as a minimum, the initial 2350 cubic feet per second of the natural daily flow of the Tuolumne River, whenever the same can be beneficially used by the said districts and further that t'e Grant6e, City and Cour_ty of San Francisco, shall never interfere with such rights. In addition to the aforesaid natural flow priority, the Grantee is com- pelled by the. tei. ,s of the grant to release from s i,ora e, on de .and of the the said Districts and when necessary for/beneficial use therein a quantity of Fater when added to the natural flow then available to the Districts, at their ;point of diversion, shall equal the said quantity said of 2350 cubic feet per second at the/diversion point and for which stored eater the rrantee shall be aid the actual costs thereof. In ccnsiaeration of the fact that the average annual run-off of i s Tucluiline River is approximately 1,3;,5,000 acre feet or an average daily flow per annum of 2500 cubic feet per second, the Grantee is thus COin elled to release, for use by prior rights, durin ; the irritation or beneficial use, eri.od, 2350 cubic feet per second or ninety four per cent of such avera7e daily flop, whereas, the averane annual run-off of the 74 . 1..loelumne River is approximately 802,000 acre feet, (Exhibit #34), or an average daily flow per annum of 1100 cubic feet per second and were the East, !),ay amicipal Utility District compelled to release, for tbe use by prior rihts, th&t which Congress has compelled the City and County of San Francisco so to do, the comparable release by the said District 7;ould by 1034 cubic feet per second, whereas the License was granted to the said District for Project #567 without binding provisions of arly iielease. Congress has (ade it mandatory that the City and County of San Francisco must sell water from Tuolumne River storage at actual cost for the use when needed by prior ri hts therein, while the Federal Power Cb=ission has omitted such a protective measure in its License to the East 3ay :Unicipal Utility Distrct and thereby retarding the !rowth and prosperity of the lokeiumne River area because of the econoRlic li-olit- ation of irrigation oy pumping subsurface water. Congress has made it further mandatory that the City and. County o± 3an YrdliCiSCO shall seal :.nd supply upon rerJuest of and to the said iri,ation Districts or land owners or :.unicipalities therein, any excess of electrical enery, not reouired for -pumpin the -,:-.ter supply for the said City and County, at such price as will actually reimburse the costs nereof and so to no before any electrical enery nay be sold for con- nercial purooses, hereas, the East hy lunio:pa1 Utility District, con- trary 60 its applications and permits, (Exhibits #0 :,.rid #7) of the Calif- ornia Division of Yaler Rishts, together with jts Project :License #00?, (Exhioit &), fro(1 the Y-derl 1-ower Commission, v)heein ,nd whereby the said District declared its intention and as !--:iver ernission to use the electrical encfy proposed to be c2enerated, and declared to be a -,:,ublic • necessfty for -pm,Koing in connection with the deliveryof its municipal ater supply, has contracted ad solO. such energy to :,,, comeccial Public Utility Coir;-;.ny by a,zrement, (It(hioit 0), dated rovnoer 13th 392:=1. Here ,fain, the Federal :,ower 0om3aissi00 onitted, in the issuance of the the License topaid :istrict, th;ivino of a. confOle ,Totection, to ,he co.nunities affected by the project works of the said Dist-f'ict, as Sas :iven by ConEfress to the areas affected oy the wroposed (:1:;s, 15. of ,;he City and County of Jan ::i'rancisco. In consideration of the future increase in use of electrical energy and the resultant hiEher cost of pumpin7., because of an accel- erated lowering of the 7round-water table underlying the affected area, due to the proposed o7Jerations of the East Say Yunicial Utility District, the aforesaid omrnission by the Federal Power CommiSsion is regretable and will eventually result in a 'reat, unnecessary and unfair economic waste to the fifty thousand acres now irrigated fro..fil wells. The Act of Congress specifically provides that the City and County of San Yrancisco shall not divert any of ti-v: waters of the Tuolumne River except such as shall be- necessary to provide for its m.uniciiq:.1 needs together with the waters it now bas. In contrast to the protection that Congress thus gave to the proprietors of prior rights in and to ,the waters of the Tuolumne River 3asin, the Feder.11 Power Co:ission hasr through the ommission of a comparable restraining pro- vision, thereby permitted the East 3a r.unicipal Utility District to substitute its former fAunicipal water supply with -;,he caters of the hokelumne River and thus dispose of its said oruler supply for monetary gain as recited in (Exhibit #49), top:ether with. ccrtain corresnondence pertaining thereto, (Exhibits 09 to #49 inclusive). That the said strict Ls new in contemplation of the disoosition of additional caters, has been, in this Resolution, heretofore recited. In consderation of the aforesaid facts, this Conrcil suOH.ts, in rbe year 1913 and in consideration of the then existing and anticipated agricultural and municipal develoonts of ths State of California, the Conzress of the United States was justified in i,posing upon the City and Cou,ty of Su: Yrancisco the restrictions and obliga- tions as in the facts recited for the protection of the Tuoluilne River :'ea, then the Federa'3 }oner Ca-i .sion, created in 10.::0 by and subserv- int to she Congress , did in 1926, irrespective 01 the subsequent developments, as aforesaid, and 7.ore _:-articularly in the -:01..,:1u,-ine Area, obviously and pal,dably err in .:r,nting the present License of Project ii567, to the East ':',.; :unicipal Utility District, whereby, and for all prac- tical purposes, the 2f,.ani-pulation of the waters nt the 1:olumne River 16. is dependent upon the will an;1 convenience of the said East 3ay Yunici- pal Utility District. (7) Article 16 of the said License of Project #567, (Exhibit #4), ;and artic:les 9 e-.nd 6 of Permits #2459 and #2529, resl:ectively, issued by the California Division of Tater Rights, (Exhibits 15 and #6), mke it mandatory that the East 3ay Yunicipal Utility District construct he so-cf_Illed Jackson Creek Spillway, whereby surplus waters in excess of the amounts used by the s,id District for its municipal needs, may be diverted northward from the Pardee Reservoir, and thereby completely out of ::cnd aay from the Voelumne River Basin below the sbid Pardee eservoir. Paragraphs (3) n6 (6) of letter, (Exhibit §10), dated December 3rd 1925, frum the Federal Power Comniission, recite the as - tion of the passage of water, through the Reservoir of the said District, for use by the established ri.or 7R.sted rii:hts below, before L,.nd 1)rior to .6iy. ojversion .,i t'firouh the said Jackson Creek Spillway shall be made und t]:xereby amply protecting such down stream prior vested rights; how- ever, Article 10 of the District' License, (Exhibit ), was inclurjed in the said License, 'to safeguard the possibility of ultimately developing the Arroyo Seco Reservoir," the water of which would be contributed through the Jacl:son Creek,3pillway and the resultant complete destruc- tion of the aforesaid prior vested rights, Paragraph (2) of said (Exhib- it #10), provides that, "ny party so damaged has recourse to the State Courts, without reference to the Federal Power Commission". Insofar as havincf any definite and firm assurnce th..t, because of the proposed diversions of tie said District to the East .3ay Cities, together with the proposed ultimate diversions throupli the said Jacson Creek Spillay, the entire ,flow of the TZokelnnne River, below '6Pe diver- Fjoil worl-]s of the said District ad above the lands b;-ivino the said irior not eventually he SO diverted, it is obvious such ass4r,,,?,(if-fs can, to date , only be had throuf„-h protracted liti- Htion, irrespective and apart from the ultiim,zte diversions throurfla the Jackson Creek .-3oil1:ay asaforesaid, the ultimate municipal diversion of Bay Municipal Utility District, as dependent upon the rate of 17, groi;th in the present area of the said District, together with the number and capacity demands of the areas now proposed to, and which may, be served as aforesaid, undr its present appropriation of 217,000 acre feet 2er annum will at times exceed the total annual run-off of the 71elunne River, as would have been the case for the year 1923-1924, as indicated in (Exhibit #34). It was shown from the evidence, during the tri:,1 of cases 39o. 1642 and 7.To. 1661, in the Superior Court of the County of Calaveras, California, as hereinbefore recited, (Exhibits #30 and #31), tbat the said District bacl allocated a maximum quantity of 70,000 acre feet per annum to provide for and satisfy the aggregate vested and prior rights of the YLkelumne Basin oelow the Pardee Reser- voir or an average daily flow per annum of less than 100 cubic feet per second, whereas the total average daily flow per annum of the 1.o1:elumne River is 1100 cubic feet per second. Thus the East Bay bunicipal Utility District contemplates releasing, although not ordered so to do by Court decree or mandate of the Federal Power Commission or the California Div- ision of !,Vater Rights, for the ag:.;regate use of all 2.okEaumne River prior vested rights approximtely ten per cent of the average daily flow per annum of the said river, while the City and County of San Francisco is, by Congress ordered to pass approximately thirty per cent of the average daily flow per annuia of the Tuolumne River for the protection and use of similar rights in the Tuolumne 'Basin Area. This Council again submits that such a litigation burden should not be imposed upon the community so an affected and further that such/oppressed community is entitled to the assurance of water releases at the Pardee Reservoir, of sufficient quantity to iNaintain the surface and sub -surface supplies as they are row maintained oy nature, and further, to the protection of the existing Federal and state Agencies viz., the Federal Power Commission and the California. Division of Water Rights. While Section 27 of the Federal Water Power Act provides that the Federal Power Commission does not have nor shall be assumed to have jurisdiction over the disposition of any waters of a State, other th:tn ir the interest of navigation, Article 17 of the District's License, 18. (xhibit #4), provides certain limitations, upon the said District and other appropriators, for the control and use of appropriated waters of the ]:.jokelumne River and further, paragraph. (4) of the letter dated December 3rd 1928, (Exhibit #10), recites such limitations and restrictions upon the said District and their design, "to aid full and comprehensive development of the entire water resources of the stream although at some possible sacrifice of the power production at Pardee Dam", therefore, because of the foregoing acts it is concluded that the Federal Power Commission can and does exercise its authority to control, through issuance of licenses, the operations of Project corns in the interest of the development and protection of present and future rights in and to the waters of streams of the United States, l'o where in the said License have the prior vested rights in the 1.,.bla=e River 3asin been so protected by limitations and/or restrict- ions upon the proposed operations of the East ',1ay Yunicipal Utility District. Articles 3 and 10 of Permit #2459, (Exhibit #5), and Article 10 of Permit.#2529, (Exhibit #6), indicate, a determination by the Califor- , retain nia Division of Vater Rictts to/jurisdiction and the right to regulE:te the operations of the said District, to the end that, "there is a possibility that there will not be sufficient water in the lifokelumne River ---- to satisfy requirements", together with a definite absence of understanding and knowledge of what the effect of the District's op- erations will be upon the percolating anc3 underground waters of the said river and the area now dependent thereupon for its municipal, domestic and irrigation supply. The facts contained in that certain Decision ..P7o. 1462, "Opinion and Order", of the California Division of ;/ater Rights, dated April 17th 1926, referred to in (Exhibit 420) at paragraph (3-4), are clearly indicative of the opinions and determinations of Lhe said Division in connection with the granting of Application #4223 of the East 3ay Lunicipal Utility District, whereby, the said District subse- quently becamce a Permittee under Permit #2459, (Exhibit #5), In the findings of ',;he said Decision it was found and concluded that, "There 19. is et present ,rni area Of some 40,000 acres in tbe vicinity of Lodi de- pendent either wholly or in part upon thderground water drawn from wells. The underP.round supply is largely dependent upon percolation from the Kohelumne River and other water courses and from seepage from the lokelumne Canal. Testimony was presented to show that during the last ten years the ground water level has fallen on an average of 13 to 10 feet. The rihts of the users of water by this method are as trulL pL12r and vested as are the rights of those who divert from a stream on tbe surface and such right owners are entitled to the same degree of protection against subseoucnt appropyiators. It is incumbent upon Permittees who have received a permit to divert unappropriated 'hater to secure such. a supply in a manner which will not be to the detriment of the oners of prior riHlts to water from the same soUrce. There is normally witbbut question a large ambunt of unappro- pri..ted water in the IbLeluffne River. This does not mean that -.ry ap- plicant recelva.rag a 2ermit for anyportion of this can divert the same without arranginz for full protection for the prior rihts and in the case of users from this underground basin, the water level in which is receding, this means in effect that the natural percolation must not '22deminished. The Permittee, in this case, will be under tbe clear obli4.,eon of amply safeguarding prior rights; and it will be much more - et"i efficient and less expensive for Permittee to provide complete protec- tion than to withstand ensuin litigation and damaEes if he does not". The findino's further recite, "while there is a vast amount of unappropri- ated ;:ater available in the rokelumne River after the rights of the underground users are considered, such ri7hts_do exist, are entitled_to protection, and on account of the difficulty of an accurate engineering analysis are inaositiontoinsist on P‘enerous treatment and to mater- ially obstruct Applicant's plans in case this is not provided for. If Applicant's ,,llowance for vsted rihts include nothing for the under- ground.users, such estimate_was clearly eroneous. /:,s it appears that Applicant is, or was at the time of the hearing, not fully cognizant of the responsibiliLtz which he as a Permittee must accept toward the 20. under -;round. water users, it is concluded that it will be advisable to include in such permit as may be issued a special clause pointing out such responsibility:. The Division concluded that the said Municipal Permit #2459, should be issued subject to special limitations, one of which would pro- vide for, "the safeguarding of the existing rights of the users from the underground water basin of the Mokelumne River". The aforesaid reserva- tions, conditions and findings of the said Division of Water Rights, as recited in (Exhibit #5), permi.t,approved .April 17th 1926, together with the said Decision in case #1462, as aforesaid, were by inference referred to in the third paragraph of the preamble of License of Project #567, (Exhibit #4), and were known to the Federal Power Commission at the time of its subsequent execution of the said License on June 24th 1926, in accordance with "The Federa.l. Water Power Act", section 9, sub -section (b) , and section 27 thereof. This Council assumes that the Federal Power Commission, in rec- ognition of the aforesaid facts., :incorporated Article eighteen in its License to the East 2a.y l.tunicipal Utility District, (Exhibit #4), in w-hich, "the oerations of the Licensee, so far as the; affect the use, storage and discharge from storage of the waters of the i2or;elumne River, shall at all times be controlled by such reasonable rules and regulations not materially interfering ,vith the use of the water of the Licensee for its municipal and domestic Deeds as the Commission may prescribe in the interests of ---- beneficialiablic uses". This Council submits that such a reservation as aforesaid, together with Section twenty six of "The Federal. Water Power Act", authorizes and empowers the Federal Power Commission to impose such ?water release regulations, upon the East Bay ,:unicipa.1. Utility District, as will assure satisfactory protection to dowostreare i:;ior vested :C'i :hts, and in no way Thereby nullify or destroy the water appropriations of the said District for either its municipal or power use as are recited and limited in such. permits, (Exhibits #5 and #6). 21. A letter from the Executive 3ecretary of the Federal Iower Com- mission, dated :bvember 6t1 1930, (Exhibit #42) in section 2, paragraph two, recites that "The License ---- to the East 3ay Municipal District was necessitated, under the provisions of'The Federal Water Power Act', by reason of the fact that the District proposed to henerate electric power --- in connection with its public works desined to furnish a municipal water supply. Article 18 of the License was designed only to regulate the discharges and uses of water made by the Licensee in the operation of its power project. While the language of the. Article seems broad, it is not the desire or policy of the Commission to act there- under for thepurpose of controlling the operations of the East Bay .72:unicip,-,1 Utility District with respect to 6ther uses to which its water supply may be put." Durina the trial of cases yo. 1642 and No. 1661, (Exhibits #30 and #31, respectively), in the 6uperior Court of the County of Calaveras, California, as aforesaid, the City of Lodi offered to do Equity in the premises by stipulating that the East 3ay 1,unicipal Utility District should have the prior riht to continuously divert, from the Pardee Reservoir, from natural flow and/or storage, to the East 3ay Cities a municipal draft of seventy seven cubic feet per second of the Lbh(el- umne River water or he capacity of its present pipe line and contemp- oraneously therewith the said District should continuously deliver at the tail -race of the Pardee Power House, 375 cubic feet per second to- gether with an additional 375 cubic feet per second continuously between the hours of 5 o'clock P.. and 8 o'clock P.V. of sach day or a total averae flow, for each calendar day, of 422 cubic feet per second. 3uch deliveries to be continuous so long as the- surface of the Pardee Reser- voir is at least two feet above the elevation of the lowest gravity in- t,ke of the said District pipe line through whih-:h such eater 4vould be delivered to the East 3ay Cities. The said Distriot to permit all re- 1,,ses, as elacie oj 6he Pecific eas ,flit El,ctric C0i)J in pursuenoe of the judzetent in ease #1591, (ExhAoit #29), as aforesaid, together ,fidth other flow f:om the tributi,ries of the 1:2oh1uc.Lne River above the Pardee Res(,rvoir, to pass into ihe said Pardee Reservoir until the Id Reservoir is full to eapacity and thereafter such an amouot to flow 22. bs necessary to ,eepit so filled simultanceJs v.:Ith the municipal end power or dischare drafts as aforesaid, oo hereafter, any ,n6 all flow into Pardee Reservoir, fro all sources, not required bo keep the said Reservoir so filled to capacity to b avdilable for delivery to the s.aid East Say ::unicipal Utility District for rtunicipal Use. At tho the afore3aid Euity offer was made, the referred to :ii.d[v(ert h.-,6 not then been entered. The waters of the 1.oellip,f,e River .;.:co-p,osed to be annually di- verted to stord.e. id sat, .3prins, Deer Valley an6 Lower 3eor River :9- ervoj.rs 3y the Pacific and Electric Con!,ai-v-, unoer their present Permits from the CaLfornia Division of 'dater Rihts, tota] In quantity in excess of 204,00 acre feet, ond which may be, in opinion 01' line said Division of urhiter Ri.ts, so stored ano released oy the s- 14 Colip- ay at its voila convc,nice, -irrespective a:id ,,.;,4art 110» any ri-ts 1T011 011 ue asserted oy the s: 14 12 st 30.y 1,0010i-ia1 Utility District pert;d.inil-1 to tho -,nner and ti -,Nes of such proposd releases of Lhe said stored ,aters, ,no furtber, that the said District no rits in and to the aid -t4a,t,Ers bcause of any financial invest.ent in the Project Jerks noli, being constructed to so 0 i-rert on store the 01106. rrespect- ive and &»art frur:) such pro,)osed annual stora,J:e btile Pacific Co2z,ary of 204,000 dcre feet, there will h an annual averaF:e ilow, in the ,cain :.oelune River above the Divrsion Works of tue said District, (:xibit 1,1:34), of 592,000 acre ftet, or 07,1,000 acre -f.,et in novi ezcess of 22c -1-Laximum antity of 217,000 acre feet/permitted ta be diverted to tne 12 st Cities in ,ny one ,;ear. The City of Lodi "ns also offered to do Equity in case o:22415, (Eychibit ,111,21), in The 301:r1or Court of the CoJ,.ty of 32;n ornia, afri Lzforesaid, and Iecited le a Resolution of said City Conrbil, (hi012#22), vrnich oOtor Ilis E:,at ).d.y -urfcipal Utility District has, ,-,hrou:-,b a letter its Presient, ;ovE.uer 10th 1930, (.jfahioit 1/,',32), evaded t-ru:ouh 51.1,=ested postponei,.ent -„)enc;in:: -.110 further studies of 4se percolatin water proolem of the lbkel- uie This coe,cil sutts t'ce. aforesaid offers to do Euity 7/ere just and fair and were individuailly entitled to serious consider- ation, wheret..s, the?.2.:s.t 3ay Utility Di.,=;trict did refuse to (...ider the offers or propose any offers so to do Enuity. The evasive disposition of the Easta:./ pnicta1 Utility District Is clearly indicated in the aforesaid letter from the District Pres- ident, 7;hereas, the position of the City of Lodi is indicated in a letter from its 1:ayor, dated Yov.e-..ber 18th 1930, (Exhioit /1,33), wherein, is re- cited that, insofar as the inhabit,,.nts of the City of Lodi o)-:1 those of adjacent irrigated communities are concerned, the problem is not one of :onetary damae, but it is a matter of water ohich is the life blood of s cormunity. TOW :TEREFORE, 13E IT HE3Y REJOINED, That, this Council does protest the grarti,c, by the Fedend Power Conligission, of the appilica- tion 03 thc East DInicipal Utility District for 1-, preli-minary per- coneruct and operate a Power Itojeci:, 7o. 1134, Lhe Yokel- umne River, as applied for in tits present applications wth the said Cor.ission ,Dd with. the California :;h.1 -,e Division of --,:;.ter .it1P7) 7:nei'eas, 300h .;_cotest oill be, and is 'Irby Nithdrawn co11- 4it10nal, '6:1,4 the said aT)plications shaill be so amended and the.subse- . vent Pcrrits ,nd/or Licenses ir,Sued subject to the fo-illooin conditions, to -wit: First: Thal the said District shll conti.n-J.onsly paF4s throuh eir dro.posed so-nalled Reservoir, to oe constructed as a part of LI -ie. Ploject Woris un3er t'ne said applica6ion for Proj,ect No. 113A, and re 1;u to the ....01,,el0jine River at the taij-race of thc .Lr Power ..,[0::3e, or by-pass thereto, all of the wate,rs ,rnI,osed GO ue released tnd f]etl.lX0e11 to tilt Ri-ver 4 the Pacfic --A Electric Company t-ill-r,ce of their Electra Power House as, if fl(i SUC1/ ioo quantity of nob le3s than 475 nudia feet -1),J: second, ;Ti_: so releued oy said and to the extent provioed nal; certain in csc 'b. 1591, in 3u,c:r5or Court of Calvras Couoty, Califorria, :2-%a.r,i?ph VI h'iereof, (E:::..17ibit #29), and 24. 3ecorld: That said Di trict shall, u_,on -ritten sell c. suply to the Diricilities the inhabitants d land owners within the '1:cel.3.ne Area", a- 6efined the Geoloical Survey iater- 3upply per il,d19, at paqe 2 and irdicated ]1Lte j;i3 therein, 1,,y excess of electrical enery Lenerated under Project 7o. 114, not re- uired for the ralnicipal ',-;ater supply for the present area of tne East 3ay „Unicipal Utility District, and at si!ch a price as will actually reimourse the costs thereof to the said District, and so do oe- fore any electrical enerc.:y a...y be otherviise sold for coiHercial isur.oses the said District; ,-od Third: That the 9card of Directors of ;he said Dis6rict shall ,_Y!6. of resolution, .accede to certain alterations ,oO amendments of its present Lioese of Project 7o. 567, as shall be imposed b:,r the Federal Power Co'.1issioh, under i%nd oy o,uthority of :kcion 23 of "The Fe,aeral Water Pooer Act", together with .:i.rticie 13 of the Project License . 557, nno GO oe ;:s folows, to-wit; (a) '.1t Cl.s.District shall ,outinuousij pass 'crtrouh so-called Pardee Reservoir, now constructed and o.,,erated as a part of the krojeet Works under License To 5672 :.nd return to the hoh. 1m;.ne River at tall-race of the Pardee Power house, or 'oy-pass tereto, all of the aters proosed to be released and returned to tile 15c)::;:,Jumne River 'oy Pacific '.at s and Electric Company at the tail-race of their Electra Power louse, as, if .,.b -,,,her such eters, i a .-uantity of not less dell 475 cubic feet per seconcl, are so re:(e,,sed by the said Comap and to the tr-t nrovidco: ;n j-Ildilient in case y0 15'::11, as aforesaid; ,rov'dpd. te. ,aid District shall first ..ave ths prior nir5t to di- vert, at and fror, its present .1unici-pl supply diversion intake in the feservoir2 tLie siid pfoosed released a OtS of the sid 05 co,Itifluous flo of seveoty seven 0031c feet per secood :29, if one such ,,aters may be .release6 to transport sare to the,ast 3,ny .:."uoicipal Utility District for its municipal use in the preent trea toosof,A.cid to to so tr,,spertd Py means of the present pftpe line of 551: and provided f.--rther, t-iat all re oiniip flow, if any, 25 3f t.e, said Pacific -.,as fli.:. Zaectric Company releses, as :_foresid, shall be :released ,nd returned to the 1:.okelume Ri,rer; by the said District, ;,.17, ';he tail -race of the Pardee Power licuse, or by--Tassed there- -to, and in such a released -flanner tat the difference in quantity between the total quantity of .aater so discharued at the Electra Power ouse by 'the Pacific Gas and Electric Com-cany, for each calendar day, and the 2.1.2antity, durin,s the same calendar day, transported to the EL•st -3ay Cities, shall he so ref2u1ated and released by. the said District that the afore- said Coraoany dischare to oe returned to the river at he tail -race of the Pardee Power "Rouse or by-passed thereto, shall be of a continuous ,nd unif.,rm flow durinE the 3a: -ie calendar Jay; conditional, t.at v:h.on the a- vailable .;Uantity of such return dischare ut the Pardee i-oner House, as aforesaid, shall exceed the equivalent of a continuous flow of 375 cubic 17 -.et per second, for such calendar day, which s:,id flow shall oe continu- ously released as in this section provided, then, the said. District shall release such an availole excess quantity between 5 o*cloc..: F.1". and 8 o'clock 11 of the ..-3,12e c,:,lendar da„/ Ouriniz which the aid release of 375 cuoic feet per second shall live been ade, as aforesaid. Therefter, Ihl.d ;1.1osecuent d; the release ano return of the iv;:,ters of the ..Pcific Gas and Electric Company, as herein provided, the said District shall have the riht to store, from all inflbw into the Pardee "Reservoir, the quan- tities of water permitted to be so stored under its 1.resent Applications and Permits and to subsequently divert, for municipal and power uses, frooi such. storage, and/or netur] flow, 1.11laters perrf[ited to he so di-,erted under the per.its as aforesaid; '':roviding, such f!),:ilu'q annually periitted ..,unicbpal di-yersions to the East 3e0T Cities shall include the aforesaid seventyseven ouoic feet ,:or second or portios t -hereof and be so .,&de by the said Distret for use only in the area of the present incorporated :L;ast 3ay :!Zunicipl Utility District, and only them ,=.3 the proressive needs (2.1: the riO i0j.,=.:11i; require; ud (h) T:it the said :,-.)itret -shall, at all tines 1.,aintain its local reservoirs, in the vicinity of the Est '-',ay Cities, full to capacity pre - c.: -.deet to the retention of any afe by it in the *Pardee Reservoir above the lowest 2resent intoe, in the sr -1d Reservoir, of its ,,ter trhoport pije line, providing, that its actual municipal needs and consumptive 28. drafts, as drawn direct from its said local reservoirs, shall not, for any protracted period, exceed the then maximum as3ivery capacity of the existing water transport facilities, from the said Pardee Reservoir to the said local reservoirs; and (c) That the said District shall not divert beyond the limits of the San Joaquin Va] ley any more of the waters of the Moyelumne watershed than, together with Lhe waters which it now has, or may hereafter acquire from sources other than the Mokelu_mne River, shall oe necessary for its beneficial municipal purposes wi th.in the area of the present East Bay 1unicipal Utility District, excepting however, that the waters now being delivered to the City and Cou it.y of San Francisco under that certain agreement, dated i?ovember 17th 1930, (Exhibit #49 ), between the said City and the said District, shall continue to be so diverted and no more, con- ditional however, that upon the termination of the said present agreement 17o maters shall thereafter LIE so diverted to the City and County of San Francisco or elsewhere, as aforesaid; and (d) That the said District shall sell, and deliver into the viokeAunne River below the Pardee Dam, to Districts which are now incor- porated or as in the future may be incorporated, wi thin the "Mokelu:cnne Area" as defined in Geological Survey Dater -Supply Paper #619, at page #2 and indicated upon Plats #8 therein, water from storage in the Pardee Reservoir for domestic and irrigation use and in such amounts as may be requested and needed for beneficial use therein, at such price as w31] return Lo the Fast Say Municipal Utility District the actual storage costs thereof; Provided, that the District shall only he r.enuir.ed to me ;e such sales and deliveries of stored water as, if and when the progressive muni- sinal needs of the said present District area shall have been first pro- vided for, and only when its local reservoirs in Lhe vicinity of the East Say Cities shall ne full Lo capacity, and further, that the said District sh 7..1 oe required to iaKe such sales and deliveries, in any calendar year, only when storage in its Pardee Reservoir, at c;ne time or Limes when such written request or requests for such water may oe t ade, shall oe of a sufficient quantity to permit of such released, in tile order and in the 27. quantity, of such renuested i a.ters without reduci L; the quantity of stored water then remaining in the said Pardee Reservoir, subsequent to such releases and discharges as aforesaid, to less than fifty thousand acre feet, provided further, that the District shall be only required to make such requested irrigation releases in such a eifanner and to such an extent, whereby the said District may, if it so elects, accumulate, from all inflow sources, as aforesaid, and have in storave in the Pardee Reservoir, as of January first of each calendar year, and con- ditional that the said local reservoirs shall be full to capacity, one hundred thousand acre feet of stored water and shall have the right to so operate its Pardee Reservoir, during all of each calendar year so as to permit of the accumulation of such a storage reserve; and (e) That the said District, subsequent to the termination on or before September 30th 1935, of its present agreement, dated November 13th 1929, (Exhibit #¢8), with the Great Western Power Company of Cali- fornia, now under the control of the Pacific Gas and ;electric Company, wherein the said District has contracted to sell and the said Company has contracted to purchase all of the electrical energy proposed to oe generated at the Pardee Power House, shall upon written .rerrue st, sell and supply to the 1. �unici.palities and the inhabitants and land owners within the "Moke1i. mne Area" as defined in the Geologicaa Survey dater- Su;ppJ.y raper. #619, at page #2 and indicated upon Plate #8 therein, any excess of electrical energy generated under. Project No. 567, not required for pumping,-the municipal. water supply for the present area of the :East Bay Tfunicipal Utility District, and at such a price as will actually reimburse the costs thereof to the said District, and so do before any electrical energy may be otherwise sold for coia.a:rci._a.l_ purposes by the said District; and Fourth: That the Federal Power Commission shall direct the Pacific G-:.s and Electric Company, in accordance with Article Ho. 8 of Project License Ho. 137, transferred and assi ned to the said Company. :7 J.w.Preston, Jr., and waich License was originally approved by the 28. Feder:e..1 Power Commission on November 24th 1925, to henceforth keep an accurate record of its daily discharge of water at the tail -race of its Electra Power House in accordance with its proposed operations as here- inbefore recited, and further, to direct the East Bay Vunicipal Utility District, in accordance with Article Yo. 9, of Project License To. 567, together with proposed Project License No. 1134, to henceforth keep an accurate record of the daily inflows and outflows of the Pardee and Iriddle Bar Reservoirs, whereby the disposition, by the District, of the waters proposed to be released and returned to the Yokelunne River by the Pacific Gas and Electric Company at the tail -race of their Electra Power House, together with all other releases and diversions by the said District, may be determined and further, that the said Commission direct the -,aid Comppny and the said District to transmit such records to the City of Lodior its appointee upon a written re,juest of the said City, BE IT FURTKER RESOLVED, That the Federal PowF.r Colinission be and it is hereby requested to review the record of the activities, de- clarations of policy and intent, together with the actual procedure of the East Bay Yunicipal Utility District subsequei:t to the selection by it of the 3;:oLelumne River as the source of a municipal water supply for the said District, and to incorporate in such. review an analysis of the "Opinion and Order" of the California Division of Tater Rights, in Decision Ho. 1462, wherein the said Division recites that, "the East 3ay District has publicly announced a desire not to hinder the development of the back country and a willingness to cooperate with the Valley in soo:e plan, such as the building of Arroyo Seco Reservoir, which would relieve the District from further expense in providing for the prior rights and be of immense benefit to the entire Valley below.", also the record of the affect of the Vokelumne River natural flow relative to its contribution in maintaining the underground water table in the Basin of tbe said River; and further, to review the facts, reasors and conclusions upon which the said Com:mission, predicated its demand that the East Bay unicial Utility District construct, at a cost of several hundred thousand 29. dollars, the Arroyo Seco Spillway precedent to the granting of License to Project No. 567, whereby waters of the Iiokelumne River can and event- ually will be diverted completely out of and away from the natural Drainage Basin Area of the said River and thereby divest the said Area of its lawful prior vested appropriative and riparian rights; together with. the Equity proposal as made by this Council to do :;ith the adjudi- cation and protection of the appropriative percolating riOlts of the City of Lodi in and to the waters of the 1Iohelumne River Basin, and further, to direct its Executive Secretary to advise this Council of its findings; and be it FURTHER RESOLVED, That the Federal Power Co,omission be and it is hereby requested to demand of the said East Bay Lunicipal Utility District that it construct, in and along the :::okelumne River, downstream and be- low the Pardee Dam, and provide for the operating costs thereof, such structures, including dams, reservoirs and appurtenances thereto, as will artificially provide an equivalent -6ater contribution toward. the maintenance of the underrround water table in the "lJbkelumne Basin Area", as has been by nature so contributed by the 'X_ohelumne River prior to the construction and operations of the said District upon the said River; and be it FURTHER RESOLVED, That the Federal Power Commission be and it is hereby requested, under and by its authority of Section 10, sub -section (c) and Sections 25 and 26, of "The Federal Water Power act, to pre- scribe such regulations and orders, in connection -?;ith the future op- erations and structure installations of the East Say 1:unicipal Utility District Project Wors as vqill hereafter protect the life, health and property of the peoples residing within the Area now adversiy affected and to be SO affected by the opetions of the said Disbrict; and be it FUTER NESOLVED, That the Feueral Power Commission be bnd it is hereoy requested to order a hearing pending the issuance of a pre- ljinary pornit authorizing the construction -,nd opertion of proposed Project Yo. 1E:54; and be it 30. FURTFll;'R RESOLVEb; That the City Attorney is hereby authorized and directed to transmit a certified copy of this Resolution to the Federal Power Commission at Washington, D.C. I, J.P.Blakely, City Clerk of the City of Lodi and ex -officio Clerk of the City Council of said City do hereby certify that the fore- going Resolution No. 631 was regularly introduced, passed and adopted at a regular meeting of the said City Council held Monday, March 16th, 1931, by the following vote: AYES: Councilmen, Steele, Keagie, Weihe, Roach and Spooner (Mayor) NOES: Councilmen, NONE ABSENT: Councilen , NONE A'tte3t Dated: March 16th 1931. City Clerk of the City of Lodi. C ITY OF LODI OFFICE OF THE CITY CLERK STATE OF CALIFORNIA ss County of San Joaquin' I do hereby certify that the attached is a full, true and correct copy of Resolution No. 631 of the City Council of the City of Lodi, -passed and. adopted March .lath, 1931, as the same appears of record in the office of the City Clerk of the City of Lodi. In testimony whereof T have hereunto set my hand and the Seal of the City of. Lodi, this 16th day of larch 1931. (SEAL) City Clerk of the City of Lodi. 31.