6. Assignment of Proceeding
John A. Bohn is the assigned Commissioner and Gary Weatherford is the assigned ALJ and Presiding Officer in this proceeding.
1. Complainant Jurupa is a potable water service provider in areas of Riverside County.
2. Empire Water Corporation is the correct name for the Defendant that is incorrectly named "Empire Water Company" in pleadings in this proceeding. The Empire Water Corporation (Empire) is a Nevada Corporation operating as a purveyor of non-potable water in Riverside County, California.
3. Empire acquired the West Riverside Canal in December 2007 from the Commission-regulated Canal Company without Commission approval.
4. The 350 IWC is a mutual water company that owns claims of appropriative water rights to ground water, two wells and pump facilities, and pipelines connected to the canal that is owned and controlled by Empire.
5. The foregoing rights and facilities of the 350 IWC and Empire, respectively, underlie the delivery of non-potable water to the High School, the Golf Course, and the residence of West. Those recipients are the sole customers of that non-potable water.
6. The Golf Course and West are shareholders in 350 IWC.
7. The School District and the Golf Course each have water supply contracts with 350 IWC that cover the non-potable water that they receive.
8. When the assets of the Canal Company were assigned to Empire on December 21, 2007, the Canal Company continued to hold a certificate of public convenience and necessity from the Commission. Current records of the Commission show that the "Western Riverside Canal Company (WTD 370)" is a Commission-regulated investor owned water utility operating in the Counties of Riverside and San Bernardino. After Empire acquired the canal assets of the Canal Company a resolution was prepared by which the Commission would have removed Canal Company's certificate of public convenience and necessity but that resolution was withdrawn from the Commission's meeting agenda and never voted on.
9. Neither 350 IWC nor Empire has dedicated the foregoing non-potable water to public use. The non-potable water supply is being delivered at cost to two discrete land areas for landscape irrigation under separate water supply contracts containing different provisions. Neither purveyor is holding that water out to serve more generally the public.
1. To be declared a public utility, a water corporation must hold itself out as a purveyor of water that is dedicated to public use within the meaning of the law.
2. A purveyor that does not deliver water dedicated to public use should not be declared to be a public utility under §§ 216 and 2701-2705 of the Pub. Util. Code.
3. When a water corporation that is not a public utility acquires assets or gains control of a public utility, § 854(a) of the Pub. Util. Code requires that the acquisition or gaining of control be either approved by the Commission or considered void. Where circumstances justify, and in the furtherance of the public interest, the Commission, in its discretion, can approve prospectively transfers for which Commission approval was not contemporaneously sought.
4. Defendant Empire Water Corporation violated § 854(a) of the Pub. Util. Code by failing to obtain contemporaneous Commission approval of that portion of the December 22, 2007 assignment pertaining to the assets of the West Riverside Canal Company.
5. The Commission has authority under § 2107 of the Pub. Util. Code to impose penalties for violations of the § 854(a) requirement of advance Commission approval of transfers of control.
6. If a Commission-regulated water utility ceases delivering water dedicated to public use, abandons its role of serving water as a public utility, and does not have a customer base its certificate of public convenience and necessity should be cancelled.
IT IS ORDERED that:
1. The Complaint of Jurupa Community Services District in Case 09-03-024 is dismissed with prejudice on the ground that none of the non-potable water delivered directly or indirectly by Defendant Empire Water Corporation, or by the West Riverside 350 Inch Water Company in which the Defendant holds a majority interest, is dedicated to public use.
2. The assignment of assets of the West Riverside Canal Company to Empire Water Corporation is approved prospectively as of the effective date of this decision.
3. Empire Water Corporation is fined $0.00, zero dollars, for violating Section 854(a) of the Public Utilities Code.
4. The certificate of public convenience and necessity of the West Riverside Canal Company is cancelled.
5. The Complaint is dismissed.
This order is effective today.
Dated November 10, 2010, at San Francisco, California.
APPENDIX A
************ SERVICE LIST ***********
Last Updated on 10-NOV-2010 by: JVG
C0903024 LIST
************* PARTIES ************** |
Ed Casey |
(END OF APPENDIX A)
