Camas Prairie, Elmore County, Idaho

Category Archives: Development Agreement

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.

 

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A Judge Could Review the County Commissioner’s Decision of Approve the Cat Creek Project

The long, complex and contentious Cat Creek Energy project approval process started in 2016 and bit and pieces are still being worked out at the local level. While the Cat Creek Energy project still has some state and federal obstacles to overcome before they can officially ruin the Elmore County backcountry the S Bar Ranch isn’t sitting idly by.

On March 7, 2019, the owner of the S Bar Ranch filed a petition with the Fourth District Court asking a judge to review the decisions that Commissioner’s Bud Corbus, Al Hofer and Wes Wootan made regarding the nearly 4,000 acre Cat Creek Energy mega-project. The 64-page petition can be downloaded at https://catcreek-energy.com/download/928/ but we realize some resident don’t have the time to review such an extensive legal document, no matter how well it was written (it’s mostly plain language and tells a troubling story).

Just Some “Bit and Pieces” of the Document

Below you’ll find some actual snippets from the legal document to whet your appetite and give you a reason to spend a few hours reading about how entrenched the “good 0ld boy” network has become in our local government. So, here goes.

Page 9 / P & Z Deny all Conditional Use Permits in Aug 2016
On June 15, 2016, the Elmore County Planning and Zoning Commission (“P&Z Commission”) met to consider the applications. The P&Z Commission heard testimony from the Developer, representatives of the Developer, and others individuals who supported the Project, some individuals who were neutral and several individuals who opposed the Project. On July 13, 2016, the Elmore P&Z Commission conducted deliberations of the applications for the CUPs. On August 17, 2016, the P&Z Commission unanimously, on a 60 vote with one member absent, voted to deny the applications.

 

Page 10 / The Project Does not Comply With County Ordinance
The Commission made several findings that the proposed project conflicts with the Comprehensive Plan with regard to Private Property Rights Objectives, Land Use Objectives, Scenic Area Objectives, Hazardous Area Objectives, andAreas of Critical Concern Objectives.
The Commission further found that the Project failed to comply with the applicable Zoning Ordinances, including Title 6, and the applicable State and Federal regulations. The Commission concluded that the Applications do not comply with the required findings set forth in Section 6277 of the Zoning Ordinances
.

 

Page 30 / Conflicts of Interest
The Board of Commissioners have a conflict of interest that violates I.C. § 67-6506 and other law, and prevents them from serving as a neutral quasi-judicial body in this contested matter that is pending before the Board. The conflict arises from the fact that the County is
requiring, as a condition for issuance of CUP-2015-04 and the other CUPs, that the Developer agree to divert and deliver water from Anderson Ranch Dam to the County using the Developer’s infrastructure. In other words, the County has a vested beneficial interest in approving the granting of hydro CUP and the other CUPs, which prevents the Board from serving as a neutral decision maker as required by law.

A further conflict of interest is created by the fact that Commissioner Hofer purportedly stepped away from his duties as a Commissioner and acted as a negotiator representing the County in negotiations with the Cat Creek representatives to reach agreement on the terms of the Development Agreement. Those ex parte communications were not disclosed to the Petitioner or the public. The Development Agreement, negotiated by Commissioner Hofer, was then submitted to Commissioner Hofers fellow Commissioners for their approval. Knowing that the
terms of the Development Agreement submitted to Commissioners Wooten and Corbus had been negotiated and approved by Commissioner Hofer, there was no way that Commissioners Wooten and Corbuscould remain neutral and perform their duties as neutral decision makers regarding the terms of the Development Agreement.

 

Page 52 / The Board’s Decisions Violate Due Process Because Two of Its Members Had Ex Parte Communications with Cat Creek
During the December 22, 2017, public hearing, Commissioner
Wootan acknowledged the Commissioners had been communicating among themselves regarding the project and decided they wanted to make the project work. In response to comments from a representative of Cat
Creek that they would work with the Board to put a deal together 
that works for Cat Creek and the County, CommissionerWootan stated: Were already to that point. Weve already communicated among ourselves that were workable, that we want to make their project work,
and we want to make our intent happen.Obviously, the Board had decided to approve the project, regardless of the publics input in the decision, in violation of due process.

Download the 64-page document at https://catcreek-energy.com/download/928/

 

What is Next and What We Expect – 16 May 2019

The next court hearing will be on May 16, 2019, at 3 p.m. in Boise, Idaho before Judge Nancy Baskin.  That is when S Bar Ranch will present oral arguments in support of our case and ask the judge to rule that the actions of the County are invalid and to remand it back to the Director of the Elmore County P&Z Commission.  

We believe Judge Baskin will take the decision under advisement and render a written decision as early as July 2019.

 

Take Action Before it is too Late

There are many actions you can take that will send a clear message to the Elmore County Commissioners, the State of Idaho and even our federal government. 

Contact the Elmore County Commissioners and tell them you are opposed to the Cat Creek Energy project. 

Contact your State Representative and State Senator and tell them to find a way to stop the Cat Creek Energy project before it ruins our Idaho backcounty, hunting grounds and fisheries. 

Contact Senator’s Crapo, Senator Risch, Congressman Simpson, and Congressman Fulcher.

We’ve put together a list of contact information for all the elected official mentioned above at https://catcreek-energy.com/mailing-addresses-for-cat-creek-energy-issues/ 

 

Share, Share and Share Some More

There are many people in and around Elmore County that still do not know about the Cat Creek Energy project and how badly it will affect wildlife, fishing, water quality and hunting. Please share this information with your friends, family, and co-workers.

 

Thanks.

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Understanding the 10,000 Pages of the Complex Cat Creek Energy History?

This is the future with Cat Creek Energy

Can you really understand the Cat Creek Energy project just by reviewing the 10,000 or so documents created by the numerous hearings and meetings? Could you afford to obtain all the documents related to this complex project? Keep in mind, you’ll probably be charged $3,000+ just to get the digital files. With that said …

The Elmore County Commissioners just gave the Cat Creek Energy lawyers another six months to hammer out a water diversion and delivery agreement with the county for this ill-advised and ill-conceived project. And during that Dec. 14, 2018 hearing the history of the project became even more complex.

After years of backroom dealings, legal wrangling, last minute changes, hearings, and deliberations, we don’t know how many documents currently make up the history of the proposed Cat Creek Energy project slated for our nearby backcountry. No one knows how many pages of documentation has been created in a vain attempt to get approval for this project. And that is a problem.

The project? Just 20 mile or so up Highway 20, outside of Mountain Home, Idaho, a Gooding-based corporation plans to construct a 5,750-acre mega-energy project that also includes the construction of a 170,000 solar panel energy plant.

This is the current history without Cat Creek Energy

Two years ago, in November 2016, the county commissions figured there were 8,000 pages of testimony already in existence. One month ago, in November 2018, an Elmore County Commissioner testified again that there were still about 8,000 pages of testimony and evidence. We believe there is likely much more documentation and there is just too much information lying around in boxes within county offices to allow the Cat Creek Energy project to move forward.

The public, the commissioners and likely even the developers are a little confused as to how this project will move forward without harming the residents of Elmore County. And we think it important that the people who will be greatly affected by the project’s 500-foot tall wind turbines, a 590 acres of solar panels, countless high tension electrical transmission lines and an Anderson Ranch draining reservoir to understand its long and complex history.

So, here is a shortened version …

Part 1: 2016 – Feb 2018 History of the Cat Creek Energy Project

In 2016, Cat Creek Energy, LLC submitted five Conditional Use Permit (“CUP”) applications to Elmore County for various projects in the County’s Agriculture and Area of Critical Concern Overlay Zones. The projects include the installation of:

1. Transmission lines (“CUP-2015-03”);

2. Pump storage hydro-electrical generating facility (“CUP-2015-04”);

3. PV solar electrical generating facility (“CUP-2015-05”);

4. Wind turbine electrical generating facility (“CUP-2015-06”); and

5. Substation (“CUP-2015-07”), (collectively the “CUPs”)

The projects are collectively referred to herein as the “Proposed Development.”

June 15, 2016 / July 13, 2016: The CUPs came before the Planning and Zoning Commission of Elmore County, Idaho (the “Commission”) on June 15, 2016, for a public hearing, and on July 13, 2016, for deliberation. Evidence was presented to the Commission that the CUPs were in conflict with the Comprehensive Plan of Elmore County and would have a negative impact on the “surrounding area.”

July 13, 2016: After finding that the CUPs were dependent on each other and could not exist separately, the Planning and Zoning “Commission” of Elmore County, denied the approval of the CUPs.

In its Findings of Fact, Conclusions of Law and Order, the “Commission” found, among other things, that the issuance (or approval ) of the CUPs would have a negative impact on the surrounding area as well as other properties in the area. Approval would have a negative effect on the scenic characteristics and visual aspects of the area.

Summer 2016: Cat Creek appealed the Commission’s Decision to the Elmore Board of County Commissioners (“Board” or BOCC).

November 16, 2016: The “Board” held a hearing on the appeal of the Commission’s Decision on November 16, 2016, at which time Cat Creek presented new evidence for the first time that materially changed Cat Creek’s applications for the CUPs, including a new master site plan of the integrated Proposed Developments. This new evidence was not properly noticed as part of the hearing.

January 13, 2017, February 3, 2017, and February 10, 2017: The “Board” / BOCC held deliberations on the appeal of the Commission’s Decision on January 13, 2017, February 3, 2017, and February 10, 2017.

During the deliberations on February 10, 2017, the Board issued its lengthy Findings of Fact, Conclusions of Law and Order (February 2017 Order”), which had obviously been prepared prior to the February 10, 2017 “deliberations”.

In its February 2017 Order, the Board affirmed the Planning and Zoning Commission’s finding that the five separate CUPs were dependent on each other and could not exist separately.

However, the BOCC reversed the Commission’s Decision and provisionally approved the CUPs subject to certain conditions that had to be satisfied by the Developer before construction of the Proposed Development.

The “Board of County Commissioners retained jurisdiction of the conditional use permit application process and as a condition for the approval of the CUPs, required the execution and recordation of a “Development Agreement” by and between the County, Cat Creek, and the entities owning the land (“Landowners”) where the Proposed Development was to be located.

The February 2017 Order expressly provides that the Developer could not proceed with the Proposed Development until the Development Agreement was executed between Cat Creek, the County, and the Landowners, and recorded in Elmore County.

January 2017 through February 9, 2018

Over the course of approximately one year, Cat Creek, the County, and the Landowners met on several occasions to draft, discuss and negotiate the terms of the Development Agreement.

The Development Agreement was signed by Cat Creek, the Landowners and the Elmore County Commissioners on February 9, 2018, and recorded on the same date.

The Development Agreement that was approved materially altered the terms and conditions of the CUPs that were approved in the February 2017 Order. The material alterations include:

  • A new master site plan that was never presented to the public for consideration.
  • The Development Agreement that was executed and recorded excludes the terms and provisions for the hydro component—CUP 2015-04, for the diversion and delivery of water by the Developer to the County, which is a major component of the Proposed Development.

 

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Cat Creek Energy Development Agreement with Elmore County Gets its First Amendment

During the Dec. 14, 2018 public hearing.

Spoiler Alert: The county commissioners agreed to give Cat Creek Energy, LLC more time to renegotiate certain water issues at the Dec. 14, 2018 public hearing.

The Hearing

In a nutshell, this is what happened at this 30-minute public hearing. The first amendment of the development agreement between Cat Creek Energy and Elmore County in regards to the mega-energy project slated for our backcountry was approved during a public hearing and deliberations on December 14, 2018.

The approved amendment, however, was merely to give the county and the Gooding-based corporation extra time to negotiate the Water Diversion and Delivery Agreements portion of a joint development agreement. The original date to hammer out the details was December 31, 2018. The new date to agree on those water issues is now officially, June 30, 2019.

If the county and Cat Creek Energy cannot come to an agreement by June 30, 2019, the conditional use permits (CUP 2015-04) will lapse.

There were four individuals who testified against giving Cat Creek Energy additional time to hammer out the agreement and one individual who was neither for nor against the amendment. The interesting thing to know and understand is, Cat Creek Energy did not publicly testify at this meeting. There was one Cat Creek lawyer in attendance and she did not give us any reason for why they require more time. That could be important.

FYI: CUP-2015-04 deals with the proposed Cat Creek Reservoir and its Pump Storage Hydro-electrical Generating Facility.

Reference:

More to Come

Expect a follow-on post regarding this issue where we will discuss some of our thoughts about what happened and what didn’t happen at this and other related public hearings.

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Did You Know – New Water Right Elmore County ‘v’ Cat Creek Energy

  • Did you know the water right Cat Creek Energy wants to use for the pump-storage hydroelectric plant portion of the mega-energy project in the backcounty of Elmore County hasn’t even been created or permitted yet? It’s a proposed water right.
  • Did you know the Development Agreement between Cat Creek Energy and Elmore County has been said to be so complex that both parties wanted delays before agreeing to the water delivery portion for 10 months so they could sort out all the complexities?
  • Did you know Cat Creek Energy is asking for more time to sort out all the problems with the complex water delivery agreement?
  • Did you know that Elmore County also applied for the same proposed water right from the South Fork of the Boise River/Anderson Ranch Reservoir? Cat Creek Energy is in competition for the same water that Elmore County is asking IDWR for.
  • Did you know the United States Forest Service has concerns about Cat Creek Energy siphoning water out of Anderson Ranch Reservoir?
  • Did you know Cat Creek Energy would control any flow of water from their proposed and far-from-federally-or-state approved Cat Creek Reservoir on Little Camas Prairie to points downstream into the Mountain Home area?
  • Did you know that the proposed Cat Creek Energy owned reservoir would sit on the edge of the bluffs above Anderson Ranch Reservoir? Who builds a reservoir 800 feet above a pristine body water and doesn’t expect something to go wrong.
  • Did you know Cat Creek Energy would also use that reservoir for their partner’s cattle ranching and farming operations?
  • Did you know that for the past two summers (2017 and 2018) Little Camas Reservoir has a toxic blue-green algae health advisory issued for that body of water? In addition, the proposed Cat Creek Reservoir will be interconnected to both Anderson Reservoir and Little Camas Reservoir increasing the likelihood of blue-green algae contamination in Anderson Ranch Reservoir?

 

What Can You Do?

Call or write a letter to the Elmore County Commissioners with a delivery date on or before Dec. 14, 2018 stating why you oppose the amendments to the Development Agreement between Cat Creek Energy and Elmore County.

Phone: Commissioner Wes Wootan (208)599-3131  and/or Commissioner Bud Corbus: (208) 599-1294

Write:
Elmore County Land Use and Building Department
520 East 2nd South Street 
Mountain Home, Idaho, 83647

Attend the 1:30 p.m. public hearing on Dec. 14, 2018.

More information about the hearing, phone numbers and mailing address can be found at http://catcreek-energy.com/event-cat-creek-energy-public-hearing-for-amending-the-development-agreement-with-elmore-county/

Spread the word about the Dec. 14, 2018 meeting. At least one county commissioners believe that because very few people attend these hearing the issues aren’t important to the residents of Elmore County.

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The Amendable Portion of the Current Development Agreement (Partial Dev Agreement Only)

With a public hearing scheduled for 1:30 p.m. on December 14, 2018, in the Elmore County Courthouse regarding the possible amendment to the Development Agreement between Cat Creek Energy, LLC and Elmore County coming up soon, we thought you might like to see both proposed amendments and the current document.

The full Development Agreement between Cat Creek Energy, LLC, and Elmore County can be viewed and downloaded here …  CCE_Development Agreement (9-Feb-2018)-10673026_1. or at the direct link to that 37 page document at http://catcreek-energy.com/download/463/

A Snippet of the Development Agreement

DEVELOPMENT AGREEMENT RELATIVE TO CAT CREEK ENERGY, LLC
CONDITIONAL USE PERMITS (CUP 2015-03, CUP 2015-04, CUP 2015-05, CUP 2015-
06, CUP 2015-07)

This Development Agreement Relative to Cat Creek Energy, LLC Conditional Use Permits
(CUP 2015-03, CUP 2015-04, CUP 2015-05, CUP 2015-06, CUP 2015-07) (the “Agreement”) is
entered into this 9th day of February 2018, (“Effective Date”), by and between
Elmore County (the “County”), a political subdivision of the State of Idaho, and Cat Creek Energy,
LLC, an Idaho limited liability company (the “Developer”) (collectively, the “Parties”).

WITNESSETH:

NOTE: WITNESSTH portion of the development agreement between Cat Creek Energy and Elmore County was not included (redacted) in this post because it is not pertinent to the December 14, 2018, public hearing.

NOW, THEREFORE, in consideration of the promises, covenants, and provisions set forth
herein, the Parties agree as follows:

AGREEMENT
SECTION 1. DEVELOPMENT OF THE PROJECT.

NOTE: Section 1 of the development agreement between Cat Creek Energy and Elmore County was not included (redacted) in this post because it is not pertinent to the December 14, 2018, public hearing.

SECTION 2. REQUIRED ENCLOSURES FROM CONDITION NUMBER TWO.

NOTE: Section 2.1 of the development agreement between Cat Creek Energy and Elmore County was not included (redacted) in this post because it is not pertinent to the December 14, 2018, public hearing.


(Current) 2.2. Water Diversion and Delivery. Given the complexities of water diversion and
delivery related to the Project, and in an effort to move the Project forward without further delay,
the County and Developer have agreed to defer the negotiation and execution of all Water
Diversion and Delivery Agreements to a later date, to be heard after notice and public hearing, but
which shall be done prior to December 31, 2018, or the CUP related to water shall lapse.


There are two proposed amendments to section 2.2 of the Development Agreement

Option #1 (Blue Document)

The Parties hereby agree to replace Section 2.2 of the Development Agreement with the
following:

2.2 Water Diversion and Delivery.
          (a) The Developer shall divert and deliver water at a rate of up to 200 cubic feet per
second (cfs) to the County under its water right, in priority, on a continuous flow basis, from
the South Fork Boise River to Little Camas Reservoir by use of Developer’s infrastructure, as
long as (1) the water can be accepted into Little Camas Reservoir, as determined by the
Mountain Home Irrigation District, in its sole discretion; and (2) the water diversion and
delivery does not prevent the Developer from performing its ordinary water operations, which
term is defined as generating electricity via hydro-power or performing ordinary maintenance
of its hydro-power infrastructure and (3) Cat Creek Reservoir stored water is at least 20,000
acre feet. Developer’s duty to divert and deliver water to the County shall be suspended
during any emergency conditions that may exist outside of the Developer’s control. The
Developer agrees to use commercially reasonable efforts not to schedule maintenance work
during the anticipated water diversion and delivery time periods for the County.

          (b) For those years when the County elects to take water delivery under Section 2.2 (a)
above, charges for water diversion and delivery shall be billed to the County based on the
Developer’s actual cost of electricity for pumping the quantity of water diverted and delivered
to the County under its water right. Billing invoices from the Developer shall specify the total
amount of water pumped, diverted and discharged to the Anderson Ranch Reservoir by the
Developer and the total amount of water diverted and delivered into Little Camas Reservoir for
the benefit of the County for the twelve (12) month period in which the County takes water
delivery. The Developer shall invoice the County within ninety (90) days from the end of
water delivery to the County for that water delivery period and provide copies of its electricity
cost and its water diversion records to the County with the annual invoicing. Payment by the
County shall be due and payable thirty (30) days after receipt of the annual invoicing.

(c) The Developer consents to use of its diversion point for diversion of water under the
County’s water right.

(d) The County will inform the Developer, or its designated agent, no less than twenty-four
(24) hours prior to any County request for diversion and delivery of water under its water
right. Provided, however, the County shall be under no obligation to request diversion or
delivery of any water, or accept any water, and any County request for water diversion or
delivery shall be in the County’s sole discretion.

(e) The Developer has withdrawn its pending protest at the Idaho Department of Water
Resources against the County’s application for water permit no. 63-34348. The County has
withdrawn its protest against Developer’s water right application No. 63-34403 filed with the
Idaho Department of Water Resources.

(f) The Developer, the Landowners, the County, and their agents, consultants, and
employees shall act in good faith regarding the County and Developer’s pursuit of a water
permit and license under their respective applications, pending before the Idaho Department of
Water Resources, and shall also act in good faith regarding the County and Developer’s
relationship with the Mountain Home Irrigation District.

(g) Notwithstanding anything in the Development Agreement to the contrary, the
County’s obligations to pay for electricity for pumping expense under Section 2.2(b) of the
Amendment in connection with the diversion and delivery of water by the Developer to the
County under Section 2.2(a), shall be subject to and dependent upon the appropriations
being made in the fiscal year for the diversion and delivery of water by the Elmore County
Board of Commissioners for such purpose.

ALL OTHER PROVISIONS OF THE DEVELOPMENT AGREEMENT SHALL REMAIN
IN FULL FORCE AND EFFECT.


Option #2 (Orange Document)

The Parties hereby agree to replace Section 2.2 of the Development Agreement with the following:

“2.2. Water Storage and Delivery. Given the complexities of water diversion and delivery related to the Project, and in an effort to move the Project forward without further delay, the County and Developer have agreed to defer the negotiation and execution of all Water Diversion and Delivery Agreements to a later date, to be heard after notice and public hearing, but which shall be done prior to June 30, 2019, or the CUP related to water (CUP 2015-04) shall lapse.”

ALL OTHER PROVISIONS OF THE DEVELOPMENT AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT.


Take Action / What Can You Do

  • Call or write a letter to the Elmore County Commissioners with a delivery date on or before Dec. 14, 2018 stating why you oppose the amendments shown above.
    Commissioner Wes Wootan (208)599-3131 Commissioner Bud Corbus: (208) 599-1294
    Elmore County Land Use and Building Department
    520 East 2nd South Street
    Mountain Home, Idaho, 83647
  • Attend the 1:30 p.m. public hearing on Dec. 14, 2018.
  • More information about the hearing, phone numbers and mailing address can be found at http://catcreek-energy.com/event-cat-creek-energy-public-hearing-for-amending-the-development-agreement-with-elmore-county/
  • Spread the word about the Dec. 14, 2018 meeting. At least one county commissioners believe that because very few people attend these hearing the issues aren’t important to the residents of Elmore County. If you are viewing this on a computer, there is a Facebook Share button just below this post.
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