Cat Creek Energy – A Problem, Not A Solution!

Camas Prairie, Elmore County, Idaho

All posts by Tim Bondy

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/

 

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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 § 42–203A(5)(a)– (g) reflecting documents identified by name and Bates numbering; and (5) an Attorney’s 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, LLC’s 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 ParkCenter’s Declaration and Renewed Motion”).1

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

ANALYSIS

     Where an application proposes appropriation of more than twenty–five (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.i.  In 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.ii. The 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 ParkCenter’s renewed Motion for Rule 40.05.b Order for Application to Submit Complete Rule 40.05 Information.

2 IDWR’s 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 Creek’s 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 Creek’s 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 Creek’s 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 8–9. 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 Creek’s 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 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 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 § 42–202(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 Creek—how any private actor—may 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 Creek’s 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 § 42–202(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 applicant’s 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 Budget” and “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.

Anthony M. Jones Response to CCE’s Motion for Protective Order – June 30, 2020

What the Anderson Ranch Reservoir view might look like when the Cat Creek Energy project is finished.

Anthony Jones was retained by the S Bar Ranch to evaluate Cat Creek Energy’s Motion for Protective Order regarding its planned pumped hydroelectric storage facility on Little Camas Prairie in Elmore County, Idaho. That planed pumped hydroelectric storage facility entails creating a new reservoir on the bluffs about 800 feet above Anderson Ranch Reservoir. The proposed water right that would be used to fill the Cat Creek Energy Reservoir currently doesn’t exist.

Mr. Jones researched the Cat Creek Energy idea of building the pumped hydroelectric storage facility, plus a large scale solar and wind turbine complex. His conclusions tell us the financial viability of the Cat Creek Energy project along the Highway 20 Corridor in Elmore County is questionable at best. Mr. Jones also suggests Cat Creek Energy, LLC is trying to keep critical project information and documentation from public scrutiny under a guise of a proprietary exemption. This cannot be allowed to happen.

Read Mr. Jones’ 12 talking points below.   

Download the full Legal Doc from Anthony Jones to Cat Creek Energy's Motion for Protective Order - June 30, 2020 legal document that is partially included below. 

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Declaration of Anthony M. Jones in Support of SBar Ranch, LLC and the District at ParkCenter, LLC’s Response to Motion for Protective Order and Renewed Motion for Rule 40.05b Order for Applicant to Submit Complete Rule 40.05 Information 

ANTHONY M. JONES, being first duly sworn, deposes and says:

1. I hold a B.S. degree in economics from Idaho State University and an M.A. degree in
economics, from the University of Washington.

2. As detailed in my curriculum vitae attached hereto as Exhibit A, I have substantial
experience and expertise in the field of energy project economics.

3. Currently, I am the Principal of Rocky Mountain Econometrics, a consulting energy
economics firm in Boise, Idaho.

4. I was retained by SBar Ranch, LLC and The District at ParkCenter, LLC to evaluate
Cat Creek Energy LLC’s claims of proprietary and trade secret information in its June 16, 2020,
Motion for Protective Order and associated Declarations in this proceeding. In connection with
my work, in addition to reviewing the Motion for Protective Order and associated Declarations, I
also have reviewed Cat Creek’s Applications for Water Right Permit Nos. 63–34403, 63–34652,
63–34897 and 63–34900, Idaho Code 42–203A(5)(d), Idaho Water Appropriation Rule 40.05(f)
and Shokal v. Dunn, 109 Idaho 330, 707 P.2d 441 (1985), as well as other publicly available
information and pertinent materials available to me.

5. I reached the opinions presented here by applying accepted methodology in the field
of energy economics. The opinions expressed here are my own and are based on the data and
facts available to me at the time of writing. I hold the opinions set forth here to a reasonable
degree of economic science certainty.

6. The Cat Creek project will be located geographically in Idaho Power Company’s
(“IPC”) territory and will connect to the Western Grid. When generating, it will produce roughly
25% as much power as does IPC total. It will produce more power than Brownlee Dam, IPC’s
largest hydro project and nearly as much as IPC’s largest coal plant, Jim Bridger.

7. When pumping water back to its reservoir, the Cat Creek project will consume even
more power than it generates, comprising approximately 25% of IPC’s total firm load, roughly
equivalent to the load of the Treasure Valley, on top of IPC’s existing firm load.

8. The Pacific Northwest, where Cat Creek’s project will be located, has the most
intensively developed hydroelectric energy industry in the United States, perhaps the world. The
major players, Bonneville Power Administration, Avista, IPC, and Pacificorp, all have hydro
projects that also provide energy storage that can be used for load shaping and energy
storage. They all have programs in place to provide, both for themselves and for independent
power providers, the exact same service CCE is proposing.

9. Pumped storage is reviewed on page 54 of IPC’s most recent 2019 Amended
Integrated Resource Plan (“IRP”). In the IRP, IPC gives pumped storage an economic thumbs
down, noting, “Historically, the differential between peak and off–peak energy prices in the
Pacific Northwest has not been sufficient enough to make pumped storage an economically
viable resource.” (Page 54 of IPC’s most recent IRP is attached hereto as Exhibit B.) In the IRP,
IPC puts the levelized cost of pumped storage at around $175 /MWh. That cost compares
unfavorably with open market prices averaging less than $30/MWh and load shaping service
from the major players for less than $50/MWh.

10. Given that the process of storing energy via the pump storage process has been
developed and well understood for decades; that the necessary pump–turbines, control
mechanisms, etc. are commercially available from multiple vendors offering nearly identical
performance criteria; that at least 24 other pump–storage projects, many of similar sizes and
configurations, all connected to the same Western Grid, all dedicated to serving the same daily
mismatches in the supply and demand curves, are currently working their way through the
application process; that competition for and supply of investment funding is universal and
seemingly instantly balancing, nothing presented suggests that CCE’s solution to energy storage
is an improvement on the same process studied and shelved by the region’s major utilities or
superior to the other projects being promoted in other areas. One would expect that a dramatic
technological improvement to pumped storage would be supported by one or more patent
applications.

11. Bottom line, against this backdrop, Cat Creek Energy needs to be able to establish
that it will be able to cost effectively participate in this competitive energy marketplace. If there
is no assurance that its project will be economically viable, there can be no reason to expect that
it is reasonably probable financing can be secured.

12. At approximately 5 years away from operation, as I understand Cat Creek Energy
claims to be based on a review of its project timeline provided as CCE-X-00039, it should be
able to provide the full terms of its capital funding arrangements, including the amount and terms
of debt commitments, the amount and terms of equity commitments, and the interest rates,
amortization schedules, provisions for default, anticipated cash flows, prospective balance
sheets, the cost and income relationships associated with CCE’s wind, solar, pump–storage,
irrigation, municipal water, and irrigation district operations, etc., for the life of the project. The
only potentially confidential items that may need redaction would be the identity of the parties
committing to provide the capital. This redacted information should be provided to the Hearing
Officer, however.


I declare under penalty of perjury that the foregoing is true and correct.

DATED THIS 30th day of June, 2020.

 

 

~ signed ~
Anthony M . Jones

 

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You can download the full legal document at https://catcreek-energy.com/download/1093/

Thanks for any support you can offer in getting the Cat Creek Energy project sent back to the Elmore County Commissioners for an honest reevaluation of the entire project. The people of Elmore County, Idaho deserve better. 

S Bar Ranch Protests Cat Creek Energy’s Motion for Protective Order – June 30, 2020

After 5 years of wrangling with our local, state and federal governments, there are too many unknowns about the Cat Creek Energy Project. The whole project should be shelved completely.

On June 30, 2020, S Bar Ranch, LLC, and the District at ParkCenter, LLC responded to Cat Creek Energy’s Motion for Protective Order with the Director of the Idaho Department of Water Resources (IDWR). This response is in regards to certain aspects of the proposed Cat Creek Energy project in Elmore County, Idaho.

In short, Cat Creek Energy is withholding required information and data that individuals and government entities, such as the U.S. Forest Service need in order to make informed decisions regarding this immense boondoggle of a project.

Download the full 9.25 mb pdf file at S Bar Ranch, LLC, response to Cat Creek Energy's Motion for Protective Order

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The Response to Cat Creek Energy’s Protective Order

Dana L. Hofstetter, ISB No. 3867
Attorneys for Protestors SBar Ranch, LLC and The
District at ParkCenter, LLC


COME NOW, Protestors SBar Ranch, LLC and The District at ParkCenter, LLC
(hereinafter, “these Protestors”), and hereby respectfully respond to the Applicant, Cat Creek
Energy, LLC’s (“Cat Creek” or “CCE”) Motion for Protective Order and renew their Motion for
the Director to issue an order pursuant to Water Appropriation Rule 40.05.b. for CCE to submit
all information required pursuant to Idaho Water Appropriation Rule 40.05. The Declaration of
Anthony M. Jones (“Jones Declaration”) is contemporaneously filed in support of this Response.

In its Motion for Protective Order, CCE requests that the Director issue, “an order that
(i.) Cat Creek has satisfied the disclosure required under Rule 40.05.f.i of the Water
Appropriation Rules, and (ii) protects from disclosure the confidential information redacted from
the Second Declaration of James Carkulis and the Declaration of John L. Faulkner.” Motion for
Protective Order at 9. As discussed more fully below, CCE has neither satisfied the Rule 40.05
information requirements nor justified the requested protective order and CCE’s Motion should
be denied.

I. CCE’s Motion for Protective Order Should Be Denied as it Proposes Overbroad
Protection of Financial Information and Would Protect Non-Proprietary
Information from Disclosure in Violation of Idaho Code 42-203A’s Financial
Resources Criterion.

CCE provides a general itemization of estimated project development costs but declares
virtually every other aspect of project financing to be trade secret and proprietary. There are
certain kinds of non–confidential information concerning project financing that can and should be
provided pursuant to Rule 40.05. Thus, CCE’s proprietary claims are overbroad and threaten to
unnecessarily interfere with the parties’ ability to ensure the financial resources criterion in Idaho
Code 42-203A is satisfied.

The Declaration of energy economist Anthony M. Jones submitted herewith explains that
at this stage (which by CCE’s own timeline is approximately 5 years from project operation),
substantial non-proprietary economic information about project financing should be available:

At approximately 5 years away from operation, as I
understand Cat Creek Energy claims to be based on a review of its
project timeline provided as CCE-X-00039, it should be able to
provide the full terms of its capital funding arrangements,
including the amount and terms of debt commitments, the amount
and terms of equity commitments, and the interest rates,
amortization schedules, provisions for default, anticipated cash
flows, prospective balance sheets, the cost and income
relationships associated with CCE’s wind, solar, pump–storage,
irrigation, municipal water, and irrigation district operations, etc.,
for the life of the project. The only potentially confidential items
that may need redaction would be the identity of the parties
committing to provide the capital. This redacted information
should be provided to the Hearing Officer, however.

Jones Declaration at.\\2.

         While at this stage, significant project financing commitments should be in place and the
key financing terms would be non–confidential, CCE has claimed wholesale all such information
to be proprietary and has withheld this information from the parties. Although there may be a
basis to protect the identities of the providers of debt and equity commitments from public
disclosure, no good proprietary reason is provided for CCE withholding the existence of such
commitments and their basic terms or for CCE withholding information from disclosure
substantiating the economic viability of the proposed project.

CCE requests that the parties be required to execute a certain Protective Agreement in
order to have access to the financial information CCE is required by Rule 40.05 and Idaho Code
42~203A(5)(d) to disclose. In a number of ways, the Protective Agreement proposed by CCE is
too overbroad to protect the limited confidential information that may be in CCE’s financial
disclosures:

  1. CCE, not IDWR, decides what is protected information and what is not.
    IDWR, not the applicant, should be in the position of deciding whether
    information is legally protected    .
  2. Every person involved in this proceeding must execute the Protective
    Agreement to obtain access     to virtually all project financial information,
    although the Applicant statutorily is required to establish its     prima facie case
    and meet its burden of proof under Idaho Code     42-203A regarding financial
    resources    .
  3. What about the public nature of this proceeding and how would the public’s
    right to access information, including financial information    , about these
    Applications be safeguarded? Would parties    ’ experts also be required to sign
    the Protective Agreement to be able     to review the protected documents?
  4. Paragraph #2 of the proposed Protective Agreement concerning who could
    have access to the documents could     preclude any law firms who have ever
    been involved with any energy project transactions in this State from
    participating     in this proceeding, including, likely, CCE’s own counsel
  5. With only in camera review and no ability to copy protected information
    except upon specific request and IDWR order    , discovery and other
    preparations for hearing would be severely impaired    .

IDWR is in the best position to determine whether certain information actually is
proprietary and trade secret. However, even if certain aspects of CCE financial information may
be proprietary, much of it would not be. IDWR can decide what is the right balance between
public disclosure of information and the protection of any truly proprietary information. CCE’s
concerns about law firms’ unnamed clients are unfounded speculation. Hawley Troxell is not
representing any other client in connection with this matter other than SBar Ranch and The
District at Parkcenter. These Protestors have water rights that could be impacted by these
applications. These Protestors have no other use for the Rule 40.05 information other than
protecting their own interests. These Protestors will comply with the Director’s Order on this
matter entered into in accordance with applicable Idaho law.

II. Although CCE Has Added 11 Additional Documents to its Repository Since
these Protestors Last Filed their Motion for Rule 40.05 Information, the Rule
40.05 Information CCE Has Disclosed Remains Woefully Inadequate.

          These Protestors, in the chart prepared by Spronk Water Engineers attached as Exhibit B
to their May 1, 2020, Motion for Rule 40.05.b. Order, detailed the informational insufficiencies
of CCE’s initial Rule 40.05 information submission. On June 16, 2020, in connection with its
Motion for Protective Order, CCE updated its repository, deleting 9 documents and adding the
following 11 documents:

CCE–C–00343– List of Surrounding Groundwater Wells (1 pg.)
CCE–C–01217– June 4, 2020, USFS comment letter to IDWR (2 pgs.)
CCE–D-00015– Civil Site Plan (1 pg.)
CCE-D-00016– Electrical Diagram– Not for Construction (1 pg.)
CCE-D-00029– Conceptual General Arrangement Substation (1 pg.)
CCE-D-00021– Preliminary – Not for Construction–General Arrangement Substation (1 pg.)
CCE-D-00022– Preliminary–Not for Construction Switching Diagram Substation (1 pg.)
CCE-D–00023– Financing Sources (2 pg.)
CCE-D-00025– Preliminary Transmission Line Sketches (10 pgs.)
CCE-D-00035 – Preliminary Plan 115kv lines (1 pg.)
CCE–X-00039– Timeline– Major Milestone Dates (3 pgs.)

Unfortunately, as reflected in the updated Spronk Water Engineers chart attached hereto as
Exhibit A, the addition of these 11 documents do little, if anything, to address the inadequacies
in CCE’s Rule 40.05 submission. The chart in Exhibit A details the significant gaps in CCE’s
Rule 40.05 information that remain unsatisfied.

CONCLUSION
For the foregoing reasons, these Protestors respectfully request that the Director deny
CCE’s Motion for Protective Order and issue an order requiring CCE’s compliance with Rule
40.05’s information requirements within thirty (30) days.

Dated: June 30.2020                                  HAWLEY TROXELL ENNIS & HAWLEY LLP

 

~ signed ~

 

Dana L. Hoffstetter

The tables referenced in the S Bar Ranch response to Cat Creek Energy contains many of the Water Rule 40.05 violations. These omissions and rule violations are highlighted in red on pages 8 through 14 in the original document found at https://catcreek-energy.com/download/1081/

Here are just the first few violations of Rule 40.05:

  • No information provided to establish that storage pond will
    not intercept or appropriate groundwater.
  • General documents on the project concept. No design,
    construction, or operation specifics.
  • Claims no impact on water rights without supporting
    information    .
  • Claim diversions only in high flows and that Water Master
    will ensure no injury but no information on how CCE
    Project     will be designed, constructed, operated or
    administered on a real    –time basis to protect other water
    rights.

If you feel that the Elmore County Commissioner made a mistake in approving the Cat Creek Energy Project, we encourage you to contact them and let your feelings be known. 

Quick County Commission Phone Listing …

Chairman Al Hofer 208-599-1620
Wes Wooten 208-599-3131
Bud Corbus 208-599-1294

 

Thanks.

Idaho Power Protests Cat Creek Energy’s “Lack of a Water Right Plan”

Many residents in Elmore County, Idaho still have doubts and questions pertaining to the Cat Creek Energy project. That proposed project is a four-tier plan involving a large solar and wind turbine complex along the Highway 20 corridor between Little Camas Prairie, Anderson Ranch Reservoir and Camas Prairie. The plan also involves creating a new 100,000 acre-foot reservoir on the bluffs above Anderson Ranch. Cat Creek Energy is planning to fill their proposed new reservoir with a non-existent water right from the South Fork of the Boise River. And that is where Idaho Power comes into the picture.

On June 8, 2020, Idaho Power filed a notice of protest with the Idaho Department of Water Resources (IDWR) regarding Cat Creek Energy’s concept for obtaining a new unappropriated water right in the South Fork of the Boise River Basin. That phantom new water right, in part, could be used to partially fill a new reservoir on Little Camas Prairie in Elmore County, Idaho.

The basis of the protest is highlighted below. In short, Idaho Power is telling the IDWR that Cat Creek Energy’s concept has not been sufficiently researched nor documented in order for Idaho Power officials to make an informed decision on the permits. 

The way we are reading this protest is, Idaho Power doesn’t believe Cat Creek Energy’s proposed new unappropriated water right will have sufficient volume to fill the Cat Creek Reservoir. Cat Creek Energy officials have indicated that a full-pool is critical to the success of the project. Idaho Power also seems to be saying Cat Creek Energy doesn’t really have a plan but more like they are in the beginning stages of an idea company officials have locked inside their brains.  

Many of us are tired of the effort to protect our interest when over the last six years Cat Creek Energy has not produced any definitive plans including location details, substantiated cost estimates, or proof of funding. These are all requirements for IDWR applications.  Perhaps, more importantly, they have recently separated the four-tier projects completely and Cat Creek Energy is not going to utilize wind or solar power to operate their hydro-pump storage facility. They have also admitted that the originally submitted plan of pumping water out of Anderson Ranch Reservoir at night and generating power from the hydro-pump storage during the day will not be the rule. 

 

Source: https://catcreek-energy.com/download/1063/

From: Idaho Power Company

BEFORE THE DEPARTMENT OF WATER RESOURCES
OF THE STATE OF IDAHO
NOTICE OF PROTEST

IDAHO POWER COMPANY (the “Protestant”), by and through its attorneys of record,
files this Notice of Protest to the approval of Permit Number 63-34900 filed by
CAT CREEK ENERGY, LLC (the “Applicant”).

1. The applicant should be required to identify in each of the files within the Rule 40
submittal, the documents which support this application.
2. The application lacks specificity sufficient to evaluate the elements of the
proposed application in light of the criteria of Idaho Code §42-203A(5) and should be returned
and subject to refiling upon additional facts supporting the application be submitted.
3. To the extent the basis for this application are documents already submitted in the
Applicant’s sharefile, the Applicant has failed to demonstrate that unappropriated water supply is
available for the diversion of water under this application. Specifically, the hydrology supporting
the application and the availability of unappropriated water doesn’t support the proposed
quantities and volumes
4. Pursuant to Idaho Code § 42-1737, the Applicant must obtain the approval of the
Idaho Water Resource Board. It is unclear to the Protestant whether this approval shall be a part of
this application, supplemental to this contested action or subject to a separate proceeding wherein
the Protestant’s interests may be protected.
5. Applicant’s proposed place of use lacks sufficient detail to determine actual place of
use.
6. For such other and further reasons as may be discovered or set forth at the hearing
on this matter.

DATED this 8th day of June 2020.

BARKER ROSHOLT & SIMPSON LLP

-signed-

John K. Simpson
Attorneys for Idaho Power Company

 

 

Idaho Fish and Game are Concerned About Cat Creek Energy

By Brambleshire – Own work, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=17074506

The below copy/paste is a legal document submitted to the Idaho Department of Water Resources by the Idaho Department of Fish and Game regarding Cat Creek Energy’s plan to build out a four-stage power generation complex in and around Anderson Ranch Reservoir and Camas Prairie in Elmore County, Idaho.  

The Fish and Game argument is that Cat Creek Energy hasn’t provided their agency enough detailed information about their plans for the power generation complex for Fish and Game to do their due diligence. We think the Idaho Fish and Game petition for clarification is spot on.

Heck, the residents of Idaho don’t know enough about the Cat Creek Energy proposal and it’s beginning to look like they don’t want us to know. 

Source: https://catcreek-energy.com/download/1039/

From: Attorneys for the Idaho Department of Fish and Game

 

BEFORE THE IDAHO 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 (Cat Creek Energy LLC)

PETITION FOR CLARIFICATION

 

COMES NOW, the Idaho Department of Fish and Game (“IDFG”) pursuant to IDAPA 37.01.01.260, .513, .710–.711, .770, hereby petitions for clarification of 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”) dated June 10, 2020 with regard the scope of discovery authorized for the consolidated docket.

The Amended Order consolidates the two new Applications for Permit Nos. 63- 34900 and 63-34987 with Applications for Permit Nos. 63-34403 and 63-34652. Amended Order at 2. The Amended Order states: “Applications for Permit 63-34403, 63-34652, 63- 34900, and 63-34987 will now proceed as one consolidated contested case.” Id. The Order makes  clear  that:  “All  parties  (whether  protestant  or  intervenor) to this docket are recognized as parties to the consolidated contested case without additional procedure, protest, or intervention.” Id. The Amended Order also authorized all parties to “immediately conduct and engage in discovery pursuant to IDAPA 37.01.01.521.” Id.

 The Rules of Procedure for IDWR provide that discovery will be governed by the Idaho Rules of Civil Procedure, unless otherwise provided by “statute, rules, order or notice.” IDAPA 37.01.01.520.02. The IDWR Rules also provide that discovery may include: “depositions, productions requests or written interrogatories, requests for admission, subpoenas, and statutory inspection, examination (including physical or mental examination, investigation, etc.” IDAPA 37.01.01.520.01. The Amended Order did not provide notice that procedures other than I.R.C.P. should apply in this case, nor did it otherwise limit the types of discovery that could be conducted. Therefore, discovery in this matter should be conducted as set forth in the Idaho Rules of Civil Procedure.

Clarification is needed, however, with regard to the effect the order consolidating the four applications into “one consolidated contested case” will have on the scope of discovery. Amended Order at 2. Idaho Rule of Civil Procedure 33(1) provides: “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 discreet subparts.” Thus, under I.R.C.P. 33(1) and absent the consolidation order, the parties would have had the opportunity to posit forty interrogatories for each application. The Amended Order leaves open the question of whether, after consolidation, the parties will be limited to forty interrogatories total or whether they may serve forty interrogatories for each separate application.

As noted in the Amended Order, the initial purpose of consolidation in this matter was to recognize “all parties (whether protestant or intervenor)” to one application as being parties “to the consolidated contested case docket without additional procedure, protest, or intervention.” Amended Order at 2. IDFG did not contemplate consolidation for these purposes would translate into a limitation of its ability to conduct discovery under each of the applications separately. The Rule 40.05 Information provided by applicants in its Notice of Amended Rule 40.05 Disclosure dated June 16, 2020 provides only a fraction of the information that IDFG needs to evaluate the impacts of the water use proposed under the applications. There are a multitude of factual questions that still remain with regard to the proposed applications. While the applications are certainly interrelated, a cursory look at the elements of each makes clear that they cover distinctly different beneficial uses. Application 63-34403 will cover a 100,000 acre-foot pump-storage hydropower project. Application 63-34652 will cover 30,000 acre-feet of storage for downstream consumptive uses within the service areas of Suez Water Idaho Inc., Pioneer Irrigation District, and the City of Meridian. Application  63-34897  will cover  31,000  acre-feet of downstream consumptive uses for the City of Nampa, Black Canyon Irrigation District, and Wood Creek Ranch (this application also includes 120.2 cfs of natural flow diversion from the South Fork of the Boise for new and supplemental consumptive irrigation use on 6010 acres owned by Wood Creek Ranch). Application 63-34900 covers 19,000 acre-feet of downstream consumptive uses by beneficial users that have not yet been identified. Even this simple overview illustrates that the beneficial uses proposed by the applications necessitate individualized discovery tailored to the individualized facts of each application.

Indeed, Cat Creek itself recognizes that the Rule 40.05 information it has provided is not “a detailed explanation of every minute detail of its project or financing plans” nor does it “introduce every item of evidence that the applicant may introduce at trial.” Cat Creek’s expectation is that details “may be fleshed out through discovery and motion practice as in any other adjudicative case.” Notice of Amended Rule 40.05 Disclosure at 7. Cat Creek points out that “[a]ll parties are well-equipped to propound discovery requests to address matters for which questions exists [sic] or additional details are sought.”  Id.

 Given Cat Creek’s recognition that discovery will play an important role in further developing the factual record in this matter, IDFG’s concern that many of the details it needs to conducts its effects analysis are still missing, and the overall magnitude of the project being proposed, it does not make sense to unduly limit the parties ability to conduct discovery in this matter. Therefore, IDFG respectfully requests clarification of the Amended Order to the effect that the parties may conduct discovery to the full extent allowed by IDAPA 37.01.01.520.02 and the Idaho Rules of Civil Procedure for each application and that the limits on interrogatories set forth in I.R.C.P. 33(1) will apply to each application individually and not to the four applications as a whole.

 

DATED this 24th  of June, 2020.

 

signed

ANN Y. VONDE
Deputy Attorney General

If you oppose the construction of a large scale power generating complex on the bluffs above Anderson Ranch Reservoir and Camas Prairie, northeast of Mountain Home, Idaho, please contact the Elmore County Commissioner and let them know. 

Quick County Commission Phone Listing …
Al Hofer 208-599-1620
Chairman Wes Wooten 208-599-3131
Bud Corbus 208-599-1294

or https://elmorecounty.org/contact/

 

Thanks.

A Pine, Idaho Homeowner Explains Why “The Project” is Bad for the County

Elk and mule deer migration patterns be disrupted.

  • The Cat Creek Energy site would be built within a major migration corridor for mule deer, elk, pronghorn, raptors, and fish and other animals like bats.
  • The Cat Creek Energy site would be built in important sage grouse habitat.
  • The Cat Creek Energy site would affect our fishery and water quality.
  • The Cat Creek Energy site would create unacceptable noise pollution on Anderson Ranch Reservoir.

On May 16, 2019, Judge Nancy Baskin will have the opportunity to hear oral arguments that support the fact that the actions of Elmore County in regards to the Cat Creek Energy project approval were invalid. As a result we expect the judge will remand the project back to the Director of the P&Z Commission as early as July of this year.

Below you can read for yourself another of the many reasons we believe Judge Baskin will rule that the CUP approval process and the subsequent 2019 Development Agreement between Cat Creek and Elmore County were legally and procedural flawed.

 

Reference: Page 14 of the Petition for Judicial Review document at https://catcreek-energy.com/download/928/

Another opponent of the Project, Wendi Combs, a resident of Pine, Idaho, testified that the Project does not belong on Anderson Ranch Reservoir. She stated that “according to Fish and Game, the proposed site does lie within a major migration corridor for mule deer, elk, pronghorn, raptors, and fish and other animals like bats.

The area is an important sage grouse habitat. Sage grouse do not like tall structures, such as wind turbines, power lines, and towers. Displacement, avoidance and reduced nesting success are well documented.

Fish and Game are concerned about water quality impacts, entrainment of fish, particularly the bull trout, and endangered species. “We’re not talking about one, but six silos pumping water up and down the reservoir 24/7, 365 days a year,” their words in quotes.

Then there is the noise pollution that will affect all the surrounding neighbors and campsites rendering them practically useless for solace and enjoyment.”

We invite you to read the full 64 pages of the Judicial Review document that S Bar Ranch filed with Fourth Judicial District of Idaho to right this Cat Creek Energy wrong.

Download the document at https://catcreek-energy.com/download/928/

Take Action

Please help us stop the Cat Creek Energy project from moving forward. Contact County Commissioners Bud Corbus, Wes Wootan and Al Hofer and tell them you are opposed to this ill-conceived mega-energy project.

You can use the county website “Contact Form” at https://elmorecounty.org/contact/

or

See https://catcreek-energy.com/mailing-addresses-for-cat-creek-energy-issues/

Thanks.

 

More Are Concerned About Our Big Game Migration Corridors

“Now is the time to have dialogue as a community and share knowledge about how we can create sustainable methods for protecting wildlife, while still respecting the need for ranches and farms. It’s about coexisting,” said Hunt To Eat Owner, Mahting Putelis.

We know many local hunters, outdoorsmen and wildlife enthusiasts are dead set against the Cat Creek Energy project that is planned for the backcountry of Elmore County. We all realize that this mega-energy project will have adverse affects on our deer, elk, pronghorn, raptor and game bird populations, as wells as our local fishery and water quality. Our local group of concerned citizens have friends in neighboring states also.

The Idaho Wildlife Federation (IWF) is teaming up with “Hunt to Eat” to raise awareness and to educate people about wildlife migrations issues in Montana, Wyoming and Idaho.

The Wildlife Federation and Hunt to Eat have organized a series of kickoff “migration” celebrations with the second event party set for Boise on May 1, 2019. This may be a good event to connect with others in the area to talk about protecting our deer, elk and pronghorn migration corridors in Elmore County.

Connect With Others

Connect with the Idaho Wildlife Federation on Facebook at https://www.facebook.com/IDWildlife/ or through their website at https://www.idahowildlife.org/

Connect with Hunt to Eat on Facebook at https://www.facebook.com/hnt2eat/ or on their website at https://hunttoeat.com/blogs/conservation/celebrating-wildlife-migrations?fbclid=IwAR1YDJf0Zs-ulhzr6zAQ8jBShpaQTWYsBHmNeWDVltAw-yS2qGGYrIW6JZI

Mark your calendar for this May 1, 2019 event in Boise and watch the above online links for more details about the celebration as it unfolds.

 

Thanks.

 

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