Water Rights and Other Problems Continue to Plague the Cat Creek Energy Project

The Cat Creek Energy Project, tentatively scheduled to be developed on Little Camas Prairie and a portion of Camas Prairie in southwestern Idaho, has been having a difficult time getting started. And for good reason. This project was brought before the Elmore County Board of County Commissioners in 2017 and has faced stiff opposition from local citizens. There are also water rights issues, inconsistencies in what Cat Creek is planning in regard to the hydropower plant on Little Camas Prairie. There are also a host of federal requirement that Cat Creek Energy needs to deal with in the next two years.

On April 12, 2024, the attorneys for Elmore County filed a rebuttal to Cat Creek Energy’s 2024 Annual Report. The letter, pasted below, highlights some issues Cat Creek Energy needs to address before they can get approval for the project. Please read through this document to gain a better perspective of some of the newest issues that have materialized in the last year.

April 12, 2024

VIA EMAIL AND EFILING

Kimberly D. Bose Secretary
Federal Energy Regulatory Commission 888 First Street, N.E.
Room 1A
Washington, DC 20426 https://ferconline.ferc.gov/FERCOnline.as px

Re: Cat Creek Energy and Water Storage Project No. P-14655-002 Response to Annual Report

Dear Ms. Bose:

On behalf of the Board of Commissioners of Elmore County, Idaho, please find the following response to the Annual Report filed by Cat Creek Energy on March 29, 2024. Elmore County has jurisdiction over the land use approvals required for the project pursuant to Idaho’s Local Land Use Planning Act (LLUPA), Idaho Code Title 67, Chapter 65. Elmore County is also a party to Cat Creek’s water right proceedings pending before the Idaho Department of Water Resources (IDWR). The Board has asked me to clarify some representations made by Cat Creek in the Annual Report.

Status of Cat Creek Water Rights

In Paragraph 6(a) under the “Brief Overview” section of the Annual Report, Cat Creek specifically represents that it is “currently entitled” to the storage of 100,000 acre-feet of water in Cat Creek Reservoir. This is untrue.

Cat Creek filed its initial water right application with IDWR on May 16, 2017. Since that time, very little has occurred to advance the matter toward a contested case hearing. At Cat Creek’s request, IDWR has ordered the proceedings to remain on hold

indefinitely. According to Cat Creek, the FERC proceedings need to proceed further before resuming the IDWR proceedings. With the FERC proceedings in abeyance, it is unclear when the water right proceedings will resume.

As a reference point, when Elmore County obtained its permit for water right 63-34348, nearly two-and-a-half years elapsed between the filing of the initial water right application (March 3, 2017) and the issuance of a final order by IDWR (August 13, 2019). And, no appeals were filed. As an additional reference point, when SBar Ranch appealed Elmore County’s approval of Cat Creek’s CUPs to the judicial system, more than four years elapsed between the filing of SBar’s initial petition for judicial review (May 1, 2018) and the issuance of a final order and remittitur by the Idaho Supreme Court (June 14, 2022). Based on the level of opposition to Cat Creek’s project that continues to be expressed by members of the public, there is no reason to believe these timeframes would be accelerated.

Therefore, even if Cat Creek requested resumption of its water right proceedings tomorrow, it is highly unlikely Cat Creek would have a final, non-appealable water permit before 2031, and every day that the water right proceedings are on hold just adds to that. Needless to say, it will be a long time before Cat Creek can accurately represent that it is “currently entitled” to any diversion and use of water.

Cat Creek Reservoir Expansion

Paragraph 6 also states that Cat Creek is “considering expanding the size of the new upper reservoir by another 50,000 acre-ft. [110,000 acre-ft to 160,000 acre-ft]….” It is true that Cat Creek has filed applications with both Elmore County and IDWR related to the expansion of Cat Creek Reservoir. However, at the February 9, 2024 public hearing before the County Commissioners, Cat Creek formally withdrew its request to expand the Reservoir in response to a suggestion that such a massive expansion should be evaluated by the County’s Planning & Zoning Commission. It is difficult to reconcile the representation in the Annual Report with the prior withdrawal of the request.

CUP/Development Agreement Status

Paragraph 2 under the “Elmore County: Requested Actions” section of the Annual Report states that Cat Creek’s Development Agreement with the County has been extended until October 19, 2026. The correct date is actually October 17, 2026. Regardless, while this representation is directionally accurate, there are two important qualifications that also require some background explanation:

Cat Creek’s initial five CUPs were approved by Elmore County on February 10, 2017, and the original Development Agreement required development of each CUP to be completed by February 10, 2022. At Cat Creek’s request, on February 4, 2022, the County extended the development deadline to February 10, 2024, pursuant to a particular provision within the Development Agreement allowing for a one-time two- year extension. At the time, Cat Creek cited the SBar Ranch appeal as the need for the extension, and Cat Creek also specifically assured the County: “Once the [SBar Ranch] appeal process is complete, Cat Creek Energy, LLC is ready to commence development.” (see attached; emphasis added).

As previously referenced, that appeal was complete as of June 14, 2022. Despite that, on December 1, 2023, Cat Creek applied for another extension. Again, Cat Creek cited delays from the SBar Ranch litigation, even though the litigation had concluded nearly 18 months earlier, and despite the prior assurance that Cat Creek would be “ready to commence development” at the conclusion of the SBar appeal. In response, the County approved another extension of the development deadline until October 17, 2026.

I provide this background because Cat Creek has filed a petition for reconsideration of the extension granted to it by the County. The hearing on that request has been scheduled for April 19, 2026. Therefore, while it is true that the County extended the development deadline until October 17, 2026, that decision is now being challenged, and we will not know the finality of that determination until Cat Creek’s reconsideration request is heard and the subsequent appeal deadline lapses.

In addition, it is worth noting that of the five CUPs issued to Cat Creek, only the CUP relating to hydropower is directly relevant to the FERC proceedings. While the October 17, 2026 development deadline applies to the hydropower CUP, it is also important to note that the CUP and Development Agreement contain a deadline to enter into a water delivery agreement with the County. That requirement has always had an earlier deadline than the CUP development deadline, and it has not yet been satisfied. So, while it is accurate to state that the development deadline has been extended until October 17, 2026, that date is relevant only if the earlier water delivery agreement requirement is timely satisfied or extended.

***

Thank you for the opportunity to provide these clarifications to Cat Creek’s Annual Report. If there is anything else Elmore County can provide that would be of assistance, please let me know. Otherwise, thank you for your attention to this matter.

Sincerely,

VARIN THOMAS LLC

END OF LETTER!

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

The Cat Creek Energy project isn’t simple. It’s a complex project that will greatly affect lands within Elmore County.
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.
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.
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, 63–34652, 63–34900 AND 63–34987 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

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;
the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
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.

Cat Creek Energy – A Problem, Not A Solution!

Camas Prairie, Elmore County, Idaho

All posts by Tim Bondy