4. Issues Before the Commission
The overarching issue that survived the motion to dismiss is: Whether the present water deliveries by Empire Water Company come within the regulatory jurisdiction of the Commission, making the company a public utility. With the evidence raising a question as to what entity is actually delivering the water, Empire or 350 IWC, that initial issue has evolved into a compound one: Whether the deliveries to the High School, Golf Course and West are of water dedicated to public use and, if so, whether they are made by an entity that is subject to the Commission's jurisdiction as a public utility. As explained below, if the subject water is not dedicated to public use or is delivered by a mutual water company, there is no Commission jurisdiction. A sub-issue of the applicability of §§ 851-854, concerning the requirement that certain transfers of the assets or control of a public utility be approved by the Commission, was raised by ALJ Weatherford in a September 8, 2009 ruling12 and presented again in a December 30, 2009 ruling.13 Empire subsequently argued against the applicability of those provisions in a response14 and both parties, as instructed, argued positions on the sub-issue during oral arguments at the Evidentiary Hearing on January 6, 2010.15
12 Administrative Law Judge's Ruling on Motion to Strike and Request for Information Concerning Transfer of Utility Assets at 6, filed September 8, 2009.
13 Administrative Law Judge Ruling on Oral Argument and Presentation of Documentary Evidence at 2.
14 Empire's Response to Administrative Law Judge's Request for Information Concerning Transfer of Utility Assets at 2, filed October 7, 2009. That Response was attached as Exhibit 2 to Complainant's Opening Brief filed on October 23, 2009.
15 See R.T. 7:11-8:19; 18:4-21:18; 42:1-8.
