Cat Creek Energy – A Problem, Not A Solution!

Camas Prairie, Elmore County, Idaho

Category Archives: Reservoir

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!

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/

 

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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, 63–34900 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

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

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

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

ORDER

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

DATED this 15th day of July, 2020.

 

 

~ Signed ________________
GARY SPACKMAN
Director

 

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

Department of Water Resources Wants More Info From Cat Creek Energy

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

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

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

 

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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

 

###

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. 

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.

National Forest Service Concerns Regarding the Cat Creek Energy Project

This “Bull Trout Country” sign is located just 5 miles west of the proposed Cat Creek Energy project lands.

The Federal Energy Regulatory Commission (FERC) and The National Forest Service commented about the concerns they have about the Generation Pumped Storage Hydroelectric Project, P-14655 portion of the Cat Creek Energy project back in October 2015. Those concerns have yet to be addressed as of late-March 2019.

A letter dated October 25, 2015, from Kimberly D. Bose from the Federal Energy Regulatory Commission (FERC) highlights their concerns that Cat Creek Energy needs to act in a timely manner and in good faith before they will issue a temporary permit to begin some very critical studies within the Elmore County backcountry. Their main area of concern is the South Fork of the Boise River basin and the Little Camas Prairie located about 18 miles northeast of Mountain Home, Idaho.

Reference: Page 4 and 5 of “FERC-COMMENTS of U.S. Forest Service on Cat Creek Energy Generation Pumped Storage“ document. Please feel free to download the 25 Oct 2015 letter by clicking HERE FERC-COMMENTS of U.S. Forest Service on Cat Creek Energy Generation Pumped Storage … or https://catcreek-energy.com/download/964/

 

Here is Just a Part of the National Forest Service / FERC Concerns

Fisheries Resources

The Anderson Ranch Reservoir fisheries resource consists of rainbow trout, bull trout, whitefish, chinook salmon, kokanee salmon and smallmouth bass. South Fork Boise River below Anderson Ranch Reservoir is a Blue Ribbon fishery consisting of rainbow trout, bull trout, mountain whitefish, and sculpin.

  • Threatened, Endangered and Sensitive Species (TES) and critical habitat
    Endangered Species Act

  • Bull trout are listed as a threatened species (63 FR 31647 31674) under the
    Endangered Species Act.

  • Anderson Ranch Reservoir up to full pool is designated critical habitat (75 FR
    63898 64070) under the Endangered Species Act.

  • South Fork Boise River below Anderson Ranch Reservoir is designated critical habitat (75 FR 63898 64070) under the Endangered Species Act.


Concerns

  • Entrainment – bull trout and other species could be entrained when pumping
    water up to the holding basin.

  • Temperature – Increase in water temperature to Anderson Ranch Reservoir or the South Fork Boise River depending on the alternative considered and where water is released. The newly constructed dam would be a shallow reservoir and water temperatures would increase rapidly through solar radiation during hot summer months. An increase in water temperature could impact bull trout and could have effects on other fish resources within the reservoir.

  • Sediment – Increase in sediment from construction, maintenance and operation of hydroelectric facilities and associated power lines.

  • Supersaturation –  Supersaturation occurs when air becomes trapped in water
    spilled over a dam as it hits the pool below. If too much nitrogen is absorbed in the bloodstream of fish, air bubbles form and create the equivalent of what dives call “the bends” and fish die.

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.

FERC Requests Info from Cat Creek Energy

Proposed Cat Creek Energy Project

In a previous post dated Feb 26, 2019, we highlighted the fact that the FERC (Federal Energy Regulatory Commission) has requested additional information from Cat Creek Energy (CCE).  This is a request regarding a successive preliminary permit application for their Pumped Storage Hydroelectric project.
The Cat Creek Energy project will get more complicated as the developers start interacting with state and federal entities before they can move ahead with the project.  We feel it’s important for all Elmore County residents to understand the entire process.

Reference: http://catcreek-energy.com/ferc-request-cat-creek-provide-additional-information-by-march-8-2019/

We Think It’s Important to Understand the FERC Requests For Information

The FERC has requested Cat Creek Energy provide information, action and/or documentation regarding two different issues.  These requests apply to their bid to use public land and infrastructure for the pumped storage hydroelectric portion of their mega-energy project.  This project will affect the backcountry of Elmore County, Idaho.

Background for FERC Request #1: Cat Creek Energy wants to build a new reservoir, including a dam on the bluffs above Anderson Ranch Reservoir. They will use water from Anderson to fill their 100,000 acre/foot reservoir.  This will require using six, 15-foot diameter pipes/penstocks.

The bull trout lives in Anderson Ranch Reservoir. It thrives because of the pristine and stable environment found within the South Fork of the Boise River basin, including Anderson Ranch. The bull trout is listed as a threatened species by the U.S. Government.

FERC Request #1: The FERC has requested that CCE show proof of the actions and/or geotechnical studies they have, or will commission in the future, regarding how they will mitigate the effects that their pumped storage hydroelectric project will have on the threatened bull trout.
Remember, the bull trout lives in Anderson Ranch Reservoir, just 1,000 feet from their planned dam/reservoir on Little Camas Prairie. The two reservoirs will be interconnected if Cat Creek gets the approval to move ahead with the project.

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

 

Background on FERC Request #2: Cat Creek Energy entered into a “Lease of Power Privilege” (LOPP) with the U. S. Bureau of Reclamation (Reclamation) for the use of Anderson Ranch Reservoir. The Bureau of Reclamation has indicated that CCE has yet to provide the required funding to move ahead with the lease agreement.

FERC Request #2: The FERC has requested CCE initiate and memorialize the critical payments and actions required by the “Lease of Power Privilege” (LOPP) agreement.

 

Cat Creek Energy has until March 8, 2019, to fully respond to these two Federal Energy Regulatory Commission requests for information.

 

 

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