Camas Prairie, Elmore County, Idaho

All posts by Tim Bondy

S Bar Ranch Flies into Sulfur Creek Airport Near Stanley, Idaho

(June 17, 2023)  When the owner of S Bar Ranch isn’t actively trying to stop Cat Creek Energy from building wind turbines on Camas Prairie, he’s out flying his Tailwheel plane around the Western US. And recently he and six other pilots took off from the runway on the S Bar Ranch and meandered through the rugged scenic beauty of the region to a remote airstrip about 30 miles northwest of Stanley, Idaho. 

Here is a link to a 12-minute video capturing some of the back reaches of S Bar Ranch and the flight up to the Sulfur Creek Ranch, just 5 miles from the storied Middle Fork of the Salmon River. (https://youtu.be/bm7WlHJzW9s)

Federal Regulatory Commission Tells Cat Creek to Submit Progress Reports Now

(Last updated on Wednesday, April 13, 2022) – While the Elmore County Commissioners are reconsidering a previous decision to give Cat Creek Energy an extension on the construction of their large energy project, the Federal Energy Regulatory Commission (FERC) told Cat Creek they legally need to file progress reports on the pump storage hydro electrical generating facility portion of the project. The progress report deadline Cat Creek should have submitted expired about two weeks ago or more specifically, March 31, 2022. 

If Cat Creek Energy cannot even be bothered to submit a progress report to the US Government regarding the project they want to build on lands only 20 miles to the northeast of Mountain Home, Idaho, what makes the resident of Elmore County or the Elmore County Commissioners believe Cat Creek will follow through on any of the requirements set forth in the project’s Development Agreement between Elmore County and Cat Creek Energy, LLC. 

Below is a copy of the letter the FERC sent to Cat Creek Energy in April 2022, or download the pdf file at https://catcreek-energy.com/wp-content/uploads/2022/04/FERC_overdue-progress-report-13Apr2022.pdf


FEDERAL ENERGY REGULATORY COMMISSION

Washington, D.C. 20426

April 13, 2022

OFFICE OF ENERGY PROJECTS

Project No. 14655-001-Idaho
Cat Creek Energy and Water Storage Project
Cat Creek Energy, LLC

VIA Electronic Mail

James Carkulis
Cat Creek Energy, LLC
jtc@ccewsrps.net

RE:  Overdue Progress Report

 Dear Mr. Carkulis:
     Article 4 of the successive preliminary permit1 for the above referenced project requires submittal of a progress report every 12 months. According to our records, the progress report due March 31, 2022, has not been filed.
     The failure to timely file a progress report warrants the cancellation of the preliminary permit. This letter constitutes notice under section 5 of the Federal Power Act of the probable cancellation of the preliminary permit no less than 30 days from the date of this letter.
If you have any questions, please contact Michael Tust at (202) 502-6522 or michael.tust@ferc.gov.

 

 Sincerely,

~ Signed ~ 

David Turner, Chief Northwest Branch
Division of Hydropower Licensing

__________________
1167 FERC ¶ 61,046.

 


Originally published on April 13, 2022

 

Thanks,

A Concerned Group of Idaho Residents!

County Commissioners Unwisely Grant Cat Creek Energy an Extension on Their Project

(Last updated on Saturday, April 9, 2022)  – On February 11, 2022, the Elmore County Commissioners granted Cat Creek Energy a new two-year extension to begin construction on their massive energy project in the mountains northeast of Mountain Home, Idaho. This was both a mistake and outside the realm of their responsibilities in our opinion. In short, we believe the development agreement only allows an extension to be granted if the project is likely to be operational in two years. In fact, the project has barely begun the FERC approval process, has no water rights nor environmental impact report.  The list is long but one thing we know is that Cat Creek Energy has consistently failed to meet most deadlines.

The S Bar Ranch has filed the following Request for Reconsideration motion with the county commissioners. A reconsideration public hearing with the county commissioners will be held on Friday, April 15, 2022, at 1:30 pm in the Elmore County Courthouse in Mountain Home. Prior to that public hearing, concerned citizens may file written comments regarding the proposed new extension until Tuesday, April 12, 2022. Comments will also be accepted at the Friday, April 15 hearing.

We hope you will let your Elmore County Commissioners know your thoughts and concerns about this extension. 


Land Use and Building Department

520 East 2nd South Street
Mountain Home, ID 83647
Phone: (208) 587-2142 ext 1256
Fax: (206) 587-2120
www.elmorecounty.org 

Date: March 23, 2022

To: Whom It May Concern

Subject: Notice of Public Hearing

Applicants: Merlyn W. Clark for S Bar Ranch LLC

Case #: Reconsideration of EOA-2022-01

Proposal: S. Bar Ranch appeals to the Elmore County Board of County Commissioners for reconsideration of Extension of Approval granted to CUP-2015-03, CUP-2015-04, CUP-2015-05, CUP-2015-06, and CUP-2015-07.

A public hearing will be held before the Elmore County Board of County

Commissioners (the “Board”) on Friday, April 15, 2022, at the hour of 1:30 p.m.

in the Elmore County Courthouse, downstairs in the Commissioner’s room, 150

South 4th East, Mountain Home, ID 83647, for reconsideration of the extension

of approvals granted to Cat Creek Energy, LLC Conditional Use Permits (CUP-

2015-03, CUP-2015-04, CUP-2015-05, CUP-2015-06, and CUP-2015-07).

 

The Board issued its Findings of Fact, Conclusions of Law, and Order on

February 11, 2022 (following a public hearing on February 4, 2022) for granting

a one-time two-year time extension for the five CUPs as provided for in the

Development Agreement signed on February 9, 2018. S Bar Ranch, LLC, filed a

timely request for the Board to reconsider its Findings of Fact, Conclusions of

Law, and Order and rescind the order for the approval of time extension(s) on

the CUP(s). The reconsideration request is reviewed by the Land Use and

Building Department under Elmore County Code 7-3-12. The Director has

conferred with the Board and the Board has granted a reconsideration hearing.

 

Please review the request and provide your written comments to the

Elmore County Land Use and Building Department, 520 East 2nd South Street,

Mountain Home, ID, 83647, by 5:00 p.m. on Tuesday, April 12, 2022, so your

comments are included in staff report. All interested persons shall be heard at

said hearing and the public is welcome and invited to submit testimony.

Testimony will be limited to reconsideration of extension(s) of the CUP(s).

 

The Elmore County Board of Commissioners is responsible for ensuring

compliance with the Americans with Disabilities Act of 1990 (ADA). Any person

needing special accommodations to participate in the public hearing should 

contact the Elmore County ADA Coordinator, Kacey Ramsauer, 24 hours prior to

the Public Hearing at 208-587-2142 ext. 1254, or email ADA@elmorecountv.org.

 

Sincerely,

 

~~ Signed ~~

 

Mitra Mehta-Cooper, Director


Originally published on April 3, 2022

 

Thanks,

A Concerned Group of Idaho Residents!

Many People Think the Cat Creek Energy Project Deserves More Scrutiny

(Last updated on February 5, 2022) The developers of the Cat Creek Energy (CCE) Project seem to be trying to tell authorities their project is so inconsequential and simple they should be allowed to move forward without doing the required studies and research necessary to prevent environmental damage around a large section of land just 2o miles northeast of Mountain Home, Idaho. 

In response to CCE’s attempt to sneak out on doing the right thing for the residents of Idaho, the City of Boise wrote a letter telling the regulatory agency that there is much concern about the entire project. Read the full letter below. 

 

“Many People Think the Cat Creek Energy Project Deserves More Scrutiny, Not Less Scrutiny”

The proposed location of the Cat Creek Energy Project 

 

Some of the facts about this complex project

  1. The Cat Creek Energy project isn’t simple. It’s a complex project that will greatly affect lands within Elmore County.
  2. Constructing the proposed Cat Creek Reservoir will entail also building a powerhouse, transmission infrastructure, transporting equipment, building new roads, and permanently disrupting a water supply diversion will surely degrade the environment and wildlife habitat of deer and elk within game Management Units 39, 43, 44 and 45.
  3. The Cat Creek Energy project is controversial despite what the developers want you to believe. There are fifteen organizations/entities that have submitted documentation and data opposing the CCE water rights applications to Idaho’s Department of Water Resources to divert 100,000 acre-feet of water out of the Anderson Ranch Reservoir. By definition, that makes it controversial. 
  4. Cat Creek Energy falsely insists the studies that will be completed by the US Government for the proposed plan to raise Anderson Ranch Reservoir by 6 feet will answer some or even all of the environmental issues facing the Cat Creek Energy project. It can’t and it won’t because they are completely different projects. 

 


A City of Boise Letter About a Complex Project

Source: https://elibrary.ferc.gov/eLibrary/filelist?accession_num=20220201-5000

Submission Date: 1/31/2021

From: Mary R Grant, Boise Deputy City Attorney

Dear Secretary,

On behalf of the City of Boise (City), we submit these comments in response to the request by Cat Creek Energy (CCE) to utilize the Traditional Licensing Process (TLP) for licensing this project. For FERC’s consideration as to whether the TLP is appropriate, rather than the default Integrated Licensing Process (ILP), we offer the following:

1. Likelihood of timely license issuance: No comment.

2. Complexity of the resource issues: CCE states they have conducted extensive research and data collection on potential resource issues and intend to use the Bureau of Reclamation’s (Reclamation) Anderson Ranch Dam raise feasibility study and EIS as supporting documentation of resource issues. CCE acknowledged in the transmittal letter that the project is large but believes the resource issues and environmental impacts in the area qualify as minor. The City disagrees that the impact on resources and the environment in the project area qualify as minor. A project of this nature and scale is inherently complex. Constructing a new reservoir with powerhouse and transmission infrastructure, transporting equipment, building new roads, and permanently disrupting a water supply diversion is dramatically different than raising an existing dam 6 feet as Reclamation is proposing. The City is concerned that much of the information provided in the recent past (of the studies noted above) is research and data that has only limited applicability and relevance to the extent and nature of this specific project.

3. Level of anticipated controversy: CCE indicated a level of coordination with local, state, and federal agencies and stakeholders that would represent this project as having a low level of controversy. The City is one of fifteen original protestants of the CCE water right applications to Idaho’s Department of Water Resources to divert 100,000 acre-feet of water out of the Anderson Ranch Reservoir, suggesting otherwise. These protestants include state and local agencies, irrigation districts and canal companies, environmental groups, and individual water rights holders on the Boise River. Such a broad group of protestants with varied interests and concerns demonstrates the complexity of this large surface water storage project and its potential impacts.

4. Relative cost of the TLP compared to the ILP: No comment.

5. The amount of available information and potential for significant disputes over studies: CCE specifically notes their intent to rely on Reclamation’s feasibility study and EIS as supporting study and data collection for their project in addition to their own research. Again, the City points out that Reclamation’s project and CCE’s project are significantly different in scope and operation, with considerable differences in the magnitude of expected impacts. Reclamation’s feasbility and EIS will shed light on the types of issues to be expected with CCE’s proposed project but should not be used in lieu of a comprehensive suite of project-specific studies to identify a complete list of impacts and the magnitude of those impacts.

6. Other factors believed to be pertinent: The City is supportive of clean energy projects in the Treasure Valley and across the West. We believe that is the future of energy production. However, these projects must be accomplished while also protecting and enhancing the environmental resources along the Boise River and within this watershed.

We are available for further comment or clarification by contacting 208-608-7950.

Best regards,

Mary Grant
Deputy City Attorney

cc: John Roldan, Water Resources Manager


Originally published on February 5, 2022.

We believe the entire Cat Creek Energy project needs to be significantly scaled back or canceled altogether.

 

Thanks. 

Cat Creek Energy Project is Looking for an Extension

(Last updated on February 4, 2022) The developers of the proposed Cat Creek Energy (CCE) Project in Elmore County, Idaho are still trying desperately to move forward in 2022. For the past 5 years, CCE has insisted their project centered around a large-scale wind project and the creation of a new reservoir on Little Camas Prairie will solve water and energy problems in Mountain Home and the rest of Elmore County. 

The Elmore County Commissioners are hosting a public hearing on Feb. 4, 2022, at 11 am in the county courthouse to determine if Cat Creek Energy should get a two-year extension for their highly complex project in our backcountry. It is our opinion that Cat Creek Energy has wasted enough of our government’s time trying to push through a project that will be more harmful to wildlife and tourism than can ever be recouped by the entire energy project. 

Here is the public notice published on January 19, 2022: 


BOARD OF ELMORE COUNTY COMMISSIONERS NOTICE OF PUBLIC HEARING FOR EXTENSION OF APPROVALS GRANTED TO CAT CREEK ENERGY, LLC CONDITIONAL USE PERMITS (CUP-2015-03, CUP-2015-04, CUP 2015-05, CUP-2015-06. AND CUP-2015-07) BY ELMORE COUNTY AND A RESOLUTION GRANTING THE SAME 

NOTICE IS HEREBY GIVEN that on Friday, February 4, 2022, at the hour of 11:00 a.m. in the Elmore County Courthouse, downstairs in the Commissioner’s room, 150 South 4th East, Mountain Home, ID 83647, a public hearing will be held for extension of the valid time period for approvals granted to Cat Creek Energy, LLC Conditional Use Permits (CUP-2015-03, CUP-2015-04, CUP-2015-05, CUP-2015-06, and CUP-2015-07) due to a stay in proceedings occasioned by pending litigation. 

The Elmore County Board of County Commissioners (the “Board”) entered into a Development Agreement on February 9, 2018, with Cat Creek Energy, LLC (the “Development Agreement”) for live Conditional Use Permits (CUP-2015-03 for Transmission Lines, CUP-2015-04 for Pump Storage Hydro Facility, CUP 2015-05 for PV Solar Power, CUP-2015-06 for Wind Turbines, and CUP-2015-07 for Electric Substation). The Development Agreement stated that “the Conditional Use Permits shall be valid for a period of time for five (5) years from February 10, 2017 and maybe extended for one 2-year period upon application to the Elmore County Land Use (and Building Department (“Department”).” The Extension of Approval requests are reviewed by the Land Use and Building Department under Elmore County Code 7-3-17. The code requires a hearing with the Board because the approval period for the live CUPs was established through the Development Agreement. 

All interested persons shall be heard at said hearing and the public is welcome and invited to submit testimony. Testimony will be limited to extension of the valid time period for the five CUPs. The Board reserves the right to set time limits on testimony, and if implemented, the time limits will be announced at the start of the hearing. Anyone may submit written testimony prior to the hearing by sending it to the Elmore County Land Use and Building Department (the “Department”), 520 East 2nd South Street, Mountain Home, Idaho. 83647. The record for this matter may be reviewed prior to the hearing at the Land Use and Building Department and all the Elmore County Clerk’s Office, 150 South 4th East, Mountain Home, Idaho, during regular business hours. 

A common way of locating the property from Mountain Home for the said CUPs, is to travel North on US 20 for 25.4 miles to Wood Creek Road, The center of projects is approximately 3.2 miles north on Wood Creek Road.

The Elmore County Board of Commissioners is responsible for ensuring compliance with the Americans with Disabilities Act of 1990 (ADA). Any person needing special accommodations to participate in the public hearing should contact the Elmore County ADA Coordinator, Kacey Ramsauer, 24 hours prior to the Public Hearing at 208-587-2130 ext. 1254, via email VOIT, or in person at 520 East 2nd South, Mountain Home. 

SHELLEY ESSL, CLERK
BOARD OF COMMISSIONERS
ELMORE COUNTY, IDAHO 

1 Publication: January 19, 2022


We will try to get the transcripts from this meeting if they are published on the county website. 

Originally published on February 4, 2022.

July 15, 2020 – Idaho Water Resource Board Tells Cat Creek they Can’t Limit Discovery

The water source for the Cat Creek Energy Project

On July 15, 2020, the Idaho Water Resource Board ordered that Cat Creek Energy will have to follow state laws that allow all concerned parties to obtain critical information about the large scale energy complex proposed for Elmore County, Idaho. 

Prior to the ruling by Gary Spackman from the Department of Water Resources of the State of Idaho, Cat Creek Energy sought to limit the information citizens could obtain about a project that would use Idaho’s natural resources and water. And, let’s be honest … if the Cat Creek Energy Project was good for the people of Idaho and will supposedly be a cash cow for the residents of Elmore County, why would they try to hide information about that project. 

To read the full document from the IDWR, download it here https://catcreek-energy.com/download/1151/

 


###

BEFORE THE DEPARTMENT OF WATER RESOURCES
OF THE STATE
OF IDAHO

 

IN THE MATTER OF APPLICATION FOR PERMIT NOS. 63-34403, 6334652, 6334900 AND 6334987 IN THE NAME OF CAT CREEK ENERGY LLC ORDER GRANTING PETITION FOR CLARIFICATION

BACKGROUND

On June 10, 2020, the Idaho Department of Water Resources (“IDWR”), issued the Amended Order Consolidating Dockets and Parties; Order to Reorganize Applicant’s Rule 40.05 Information; Order Establishing Protective Order Procedure; Order Authorizing Discovery; Notice of Continue Prehearing Conference (“Amended Order Consolidating Dockets”). The Amended Order Consolidating Dockets authorized parties to this matter to immediately conduct and engage in discovery pursuant to IDAPA 37.01.01.521.

On June 24, 2020, the Idaho Department of Fish and Game (“IDFG”) filed a Petition for Clarification (“Petition”). IDFG asked the Director to clarify whether “the parties may conduct discovery to the full extent allowed by IDAPA 37.01.01.520.02 (“Rule 520.02”) and the Idaho Rules of Civil Procedure for each application and that the limits on interrogatories set forth in I.R.C.P. 33[(a)J(l )1 will apply to each application individually and not to the four applications as a whole.” Petition at 3. 

On July 1, 2020, Cat Creek Energy, LLC (“Cat Creek”) filed its Applicant’s Response to Petition for Clarification (“Response”). Cat Creek requested “the Director enter an order clarifying that the Rule 33 requirement limitation of 40 interrogatories applies to the consolidated cases, with parties being permitted to make interrogatories that pertain to multiple applications counting as a single interrogator [y].”  Response at 2.

ANALYSIS

IDFG and Cat Creek both assert discovery in this matter is governed by the Idaho Rules of Civil Procedure (“I.R.C.P.”). The Director agrees. I.R.C.P. 33(a)(1) limits parties to 40 written interrogatories, including subparts, unless otherwise stipulated to or ordered. 

IDFG asserted that absent consolidation, parties could have submitted forty interrogatories for each distinct application. Petition at 2. IDFG asserted it needs to preserve the ability to posit 40 interrogatories for each application because each application proposes a distinct beneficial use. Id.

___________________

1 I.R.C.P. Rule 33(a)(1) states: “Number. Unless otherwise stipulated or ordered by the court for good cause allowing a specific additional number of interrogatories, a party may serve on any other party no more than 40 written interrogatories, including all discrete subparts.”

Cat Creek responded that with more than 20 protestants in the consolidated docket, allowing up to 160 interrogatories per protestant could place it in the position of responding to more than a thousand interrogatories. Response at 1. Cat Creek argued federal and state rules have recently been changed to clamp down on the moden trend of excessive discovery. Id. In this case, “the fact that the applications are interrelated, that they divert water from the same point of diversion and from the same source, and that water is stored in the same reservoir, means that Cat Creek’s discovery responses will in most cases be identical for all four applications.” Id. at 2. Cat Creek would instead have the Director allow only 40 interrogatories related to the consolidated docket, but requests could pertain to all four applications, by including, for example, the following statement: “If certain information applies to less than all of the Applications, identity which Applications it pertains to.” Id.

The purpose of case consolidation is to attempt to reduce and alleviate duplicative procedure, to increase efficiency, and to decrease burdens on participating parties. However, case consolidation does not end or eliminate an application’s individual character or identity. If each application would have proceeded individually, parties would have been allowed 40 interrogatories toward each individual application under I.R.C.P. 33(a)(1). Consolidation does not remove that opportunity. 

However, the Director has the authority to order a change in the scope of discovery under Rule 520.02 and I.R.C.P. 33(a)(1) (“Unless otherwise stipulated or ordered [emphasis added] by the court for good cause allowing a specific number of interrogatories . . . .”). I.R.C.P.  26(C) also provides the Director the authority to limit the frequency or extent of discovery if

  1. the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
  2. the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
  3. the burden or expense of the of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.

I.R.C.P. 26(C). In any of those instances, IDWR may “issue protective orders limiting access to information generated during . . . discovery . . . .” IDAPA 37.01.01.532.

At this time the Director will allow 40 interrogatories per application, as allowed under I.R.C.P. 33(a)(1). However, as discovery in this matter moves forward, any party may move the Director for a protective order according to Rule 532 under the rationale expressed in I.R.C.P. 26(C)(i), (ii), or (iii).

ORDER

IT IS HEREBY ORDERED that, pursuant to I.R.C.P. 33(a)(1), 40 interrogatories are allowed each party, for each of Application for Permit Nos. 63-34403, 63-34652, 63-34900, and 63-34987, in the name of Cat Creek Energy, LLC.

DATED this 15th day of July, 2020.

 

 

~ Signed ________________
GARY SPACKMAN
Director

 

###


Thanks for taking an interest in our efforts to shut down this large scale and unnecessary energy project in the backcountry of southwestern Idaho. We’ve come a long way in exposing how bad the project will be for the local landowners, residents of Elmore County, and our natural resources. 

Department of Water Resources Wants More Info From Cat Creek Energy

On July 14, 2020, the Director of the Idaho Department of Water Resources ruled that Cat Creek Energy must provide the citizens’ information and details regarding the large scale energy production complex in Elmore County. Since June 2020, at least four entities/individuals filed a response to Cat Creek Energy’s Motion to Protect.

In the copy/paste document below you can read what Director Spackman ruled. But in short, he said “The Director disagrees with Cat Creek. Cat Creek’s Construction Budget, Finance Process Narrative, and Itemized Accounting are not confidential, proprietary, or trade secrets. Cat Creek has the burden of showing that it is reasonably probable it can secure financing to complete the proposed project. It must show that it has sound prospects of financing.

Download the entire motion at https://catcreek-energy.com/download/1132/

 


###

 

BEFORE THE DEPARTMENT OF WATER RESOURCES
OF THE STATE OF IDAHO

IN THE MATTER OF APPLICATION FOR
PERMIT NOS. 63-34403, 63-34652, 63-34897,
AND 63-34900 IN THE NAME OF CAT
CREEK ENERGY LLC

ORDER ON MOTION FOR
PROTECTIVE ORDER

 

BACKGROUND

On June 10, 2020, the Director issued the Amended Order Consolidating Dockets and Parties; Order to Reorganize Applicant’s Rule 40.05 Information; Order Establishing Protective Order Procedure; Order Authorizing Discovery; Notice of Continued Prehearing Conference (“Amended Order Consolidating Dockets”) which: (1) consolidated all four pending Cat Creek Energy, LLC (“Cat Creek”) water right applications, as captioned above; (2) recognized all parties to the consolidated docket; (3) required Cat Creek to reorganize and re-index the information already submitted and posted to its ShareFile site to coincide with the statutory application criteria of Idaho Code § 42-203A and Rule 40.05 of the Department’s Water Appropriation Rules (IDAPA 37.03.08.040.05) (“Rule 40.05”); (4) required Cat Creek to file complete Rule 40.05.f information regarding financial resources, or, in the alternative, file a motion for a protective order, along with the claimed protected or confidential information, for the Director’s in camera review; (5) authorized discovery; and (6) notified parties of the July 16, 2020, additional prehearing conference.

On June 16, 2020, Cat Creek submitted the following: (1) a Motion for Protective Order (Motion) with attached “Appendix A: Protective Agreement; (2) Second Declaration of James Carkulis with redacted “Appendix A: Construction Budget(“Construction Budget) and redacted “Appendix B: Project Finance Process Narrative(Finance Process Narrative); (3) the Declaration of John L. Faulkner with redacted Appendix A: Itemized accounting of Cat Creek’s investment (June 16, 2020)(Itemized Accounting); (4) a Notice of Amended Rule 40.05 Disclosure with attached spreadsheet reflecting the ShareFile reorganization with folders to correspond to Idaho Code § 42203A(5)(a)(g) reflecting documents identified by name and Bates numbering; and (5) an Attorneys Certificate Claim of Confidentiality Relating to Motion for Protective Order. On June 16, 2020, Cat Creek also submitted unredacted versions of the Second Declaration of James Carkulis, with unredacted “Appendix A: Construction Budget” and unredacted “Appendix B: Project Finance Process Narrative,and the Declaration of John L. Faulkner, with unredacted “Appendix A: Itemized accounting of Cat Creek’s investment (June 16, 2020),under seal to the Director

On June 30, 2020, SBar Ranch, LLC, and The District at ParkCenter , LLC, filed its Declaration of Anthony M. Jones in Support of Sbar  Ranch, LLC and The District at ParkCenter, LLCs Response to Motion for Protective Order and Renewed Motion for Rule 40.05.b Order  for Application to Submit Complete Rule 40.05 Information (SBar Ranch and The District at ParkCenters Declaration and Renewed Motion).1

On July 13, 2020, Cat Creek filed Cat Creeks Reply Brief in Support of Motion for Protective Order (“Cat Creek Reply Brief).2

ANALYSIS

     Where an application proposes appropriation of more than twentyfive (25) cubic feet per second of water or impoundment of water in a reservoir with an active storage capacity in excess of ten thousand (10,000) acre feet, the applicant may be required to by the director . . . to furnish a statement of the financial resources of the corporation, association, firm or person making the application, and the means by which funds necessary to construct the proposed works are to be provided, and the estimated cost of construction . . . and if for the generation of power . . . the nature, location, character, capacity and estimated cost of works

Idaho Code § 42-202(5).

Rule 40.05.f.i, further requires a current financial statement certified to show the accuracy of the information contained therein, or a financial commitment letter along with the financial statement of the lender or other evidence to show that it is reasonably probably that financing will be available to appropriate the water and apply it to the beneficial use proposed.

IDAPA 37.03.08.40.05.f.iIn addition, Rule 40.05.f.ii requires submittal of plans and specifications along with estimated construction costs for the proposed project, definite enough to allow for determination of project impacts and implications.IDAPA 37.03.08.40.05.f.iiThe Amended Order Consolidating Dockets ordered Cat Creek to file a comprehensive financial summary showing a reasonable probability that financing will be available to appropriate the water, including:

________

1 SBar Ranch and The District at ParkCenter’s Declaration and Renewed Motion does not bear on the Director’s decision on the Motion for Protective Order in this order. Rather, that filing will be considered as a part of the Director’s analysis related to SBar Ranch and the District at ParkCenters renewed Motion for Rule 40.05.b Order for Application to Submit Complete Rule 40.05 Information.

2 IDWRs Rule of Procedure do not allow for the filing of a reply to a response to a motion. See IDAPA
37.01
.01.270. Therefore, Cat Creeks Reply Brief will not be addressed further in this order. However, as stated in footnote 1 directly above, the Director will address SBar Ranch and The District at ParkCenter’s Declaration and Renewed Motion in a separate order. Cat Creeks Reply Brief will be addressed in that forthcoming order
.


(1)
“plans and specifications along with estimated construction
costs
.See Rule 40.05.f.ii. The submittal shall describe each
component of the proposed project,
whether a physical component,
or a nonphysical component related to
design, consultation, right of
way, contracts, permitting, etc
. The submittal shall describe the
timing
of the completion of each component. The applicant shall
estimate
a monetary cost for each of these project components; and

(2) a current financial statement certified to show the accuracy of
the
information contained therein . . . or a financial commitment
letter . . . .See Rule 40.05.f.i. The financial statement shall refer
back to the Rule 40.05
.f.ii cost of project analysis. The financial
statement shall describe how each of
the component costs will be
financed and the timing
of the financing.

Amended Order Consolidating Dockets at 2-3.

     Cat Creeks Motion argued that it had already satisfied its burden under Rule 40.05, and that no further financial resources information is necessary as it had: (1) already invested over $18 million dollars; (2) secured ownership and leases of the land where the project will be constructed; (3) secured conditional use permits and a development agreement with Elmore County; (4) secured a FERC preliminary permit and a BOR preliminary lease of power privilege; (5) demonstrated a command and provided a thorough explanation of how projects of this type are typically financed; and (6) provided a detailed construction budget, project timeline, and anticipated financing sources and uses. Motion at 89. Cat Creek argued that it has produced sufficient information to show a reasonable probability that financing will be available to appropriate water, or, it “intends to submit at hearing other evidence to show that it is reasonably probable that financing will be available.’” Motion at 3.

     Cat Creeks Motion further stated it does not intend to submit a comprehensive financial statement or a financial commitment letter;  herefore, such information is beyond the scope of this motion.Motion at 2. Specifically, Cat Creek argued,

[t]his motion seeks to protect (i) its detailed construction budget, (ii) financing
sources and uses, and (iii) Cat Creek’s investment in the project to date. This
information is proprietary, highly confidential, and highly susceptible to
misappropriation by the protestants or others
. The Department can and must
maintain the integrity of the Department proceedings by preserving the
confidentiality of such
information.

Id.

     Cat Creek argued the unredacted versions of its Construction Budget, the Finance Process Narrative, and the Itemized Accounting qualify for confidential treatment because: (1) Cat Creek has treated the information therein as confidential and expended great effort to maintain that confidentiality; (2) the information was developed at substantial cost; (3) the information has independent economic value; and (4) the information is highly susceptible to misappropriation by competitors. Id. Cat Creek argued the records derive independent economic value from not being generally known to the public or competitors of Cat Creek, and therefore, qualify as trade secrets under the Idaho Trade Secrets Act. Id.

     The Director disagrees with Cat Creek. Cat Creeks Construction Budget, Finance Process Narrative, and Itemized Accounting are not confidential, proprietary, or trade secrets.

     Cat Creek has the burden of showing that it is reasonably probable it can secure financing to complete the proposed project. It must show that it has sound prospects3 of financing. It may satisfy this burden by: (a) furnishing a statement of its financial resources; (b) estimating the cost of construction and hydropower works and establishing the means by which funds necessary to construct the proposed works will be secured; (c) a current, certified financial statement; (d) a financial commitment letter along with the financial statement of the lender; or (e) other evidence to show that it is reasonably probable that financing will be available to appropriate and beneficially use the water. Idaho Code § 42202(5); IDAPA 37.03.08.40.05.f.i and ii.

     The Construction Budget Cat Creek submitted is not confidential or a trade secret. It is the estimated costs of construction and hydropower works. It is a description of the costs associated with Cat Creek’s already disclosed general facility plans. It is not actual costs, nor is it part of a proprietary program or formula that might give Cat Creek some competitive advantage. It is a generic list of estimated construction costs. The unredacted Construction Budget should be disclosed to the parties.

     The Finance Process Narrative is not confidential, proprietary, or a trade secret. It is a general, generic, overarching description of how Cat Creekhow any private actormay decide to proceed with an energy project, and how it might pay for the project if it remains viable through its sustainability and viability phases. The name of the document is telling: Financing Parameters of a Major Infrastructure Project When Owned by a Private Entity”, with the following tagline: There are specific milestones in financing for an energy project. They are universal to all project development.” It contains a general description of Cat Creeks potential contracting and permitting processes, a generic description of potential generalized sources of grants and equity investment categories, a general description of the potential use of term debt, and a description of why certain information that may be submitted to the Director should remain confidential. The document itself is not confidential, proprietary or a trade secret. Arguably, some of what could be developed by Cat Creek as a result of what the document describes could be considered confidential. However, nothing more than the Finance Process Narrative was submitted. The unredacted Finance Process Narrative should be disclosed to the parties.

The Itemized Accounting is not confidential, proprietary, or a trade secret. It shows an investment of $18,506,581.73 in the project to date. The categories are vague, general, and

3 See Shokal v. Dunn , 109 Idaho 330, 336, 707 P.2d 441, 447 (Idaho 1985). There, the Idaho Supreme Court concluded: The reasonably probable’ standard used by [IDWR] shifts the risk of failure and shows that the state is more willing to take a risk by providing individuals with the opportunity to put water to beneficial use. It indicates a willingness on the part of the state to take a chance that a proposed water use with sound prospects of financing [emphasis added] will become a successful venture, thereby benefiting both the water user and the state.

generic and cannot be protected from disclosure. Further, the extent of Cat Creek’s own investment is a strong factor in the Director’s consideration of whether the project has a reasonable probability of success and should be disclosed to the parties. See Shokal v. Dunn at 336, 447.

     Finally, the Declaration of John L. Faulkner, which the Itemized Accounting is attached to, states: It does not make sense to me that this type of personal information must be disclosed in order to obtain a water right.” Idaho law, through Idaho Code § 42202(5) and Rule 40.05.f, require a showing that it is reasonably probable that Cat Creek will obtain the financing to complete the project. However an  applicant business entity is structured or associated—through the use of personal accounts and financing or business accounts and financing—has no bearing on the applicants ability to meet its burden of showing to a reasonable probability that it will have sufficient financial resources to complete the project. The purpose of this requirement [is] clearly intended to prevent the tying up of [Idaho’s] water resources by persons unable to complete a project because of financial limitations. [ . . . ] The legislature has provided [IDWR] with the authority to weed out the financially insufficient applications.Shokal v. Dunn at 336, 447. These financial resources disclosures are required.

     The Motion for Protective Order is denied as Cat Creek has submitted nothing deserving confidential treatment and protection at this time.


ORDER

      IT IS HEREBY ORDERED that Cat Creek Energy, LLC’s Motion for Protective Order is DENIED.

      IT IS FURTHER ORDERED that Cat Creek Energy, LLC shall disclose and place on its ShareFile site the unredacted version of the Second Declaration of James Carkulis and “Appendix A: Construction Budgetand “Appendix B: Project Finance Process Narrative,and the unredacted version of the Declaration of John L. Faulkner and “Appendix A: Itemized accounting of Cat Creek’s investment (June 16, 2020).

DATED on this 14th day of July, 2020

~ Signed ~

Gary Spackman
Director

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There are many people in the Elmore County area that have been fighting the Cat Creek Energy project for the past 5 years. The people have done their due diligence and research and have discovered the proposed energy project won’t be good for hunters, fishers, outdoor enthusiasts or the deer, elk, pronghorn, and games birds that call this area home. Even worse, the water resources from Anderson Ranch Reservoir and the South Fork of the Boise River that Cat Creek Energy are trying to capture certain won’t help the people of Elmore County. 

Download the Document - Water Resources Wants More Info From Cat Creek Energy here.

Thanks.