(Last updated on Wednesday, April 13, 2022) – While the Elmore County Commissioners are reconsidering a previous decision to give Cat Creek Energy an extension on the construction of their large energy project, the Federal Energy Regulatory Commission (FERC) told Cat Creek they legally need to file progress reports on the pump storage hydro electrical generating facility portion of the project. The progress report deadline Cat Creek should have submitted expired about two weeks ago or more specifically, March 31, 2022.
If Cat Creek Energy cannot even be bothered to submit a progress report to the US Government regarding the project they want to build on lands only 20 miles to the northeast of Mountain Home, Idaho, what makes the resident of Elmore County or the Elmore County Commissioners believe Cat Creek will follow through on any of the requirements set forth in the project’s Development Agreement between Elmore County and Cat Creek Energy, LLC.
Dear Mr. Carkulis: Article 4 of the successive preliminary permit1 for the above referenced project requires submittal of a progress report every 12 months. According to our records, the progress report due March 31, 2022, has not been filed. The failure to timely file a progress report warrants the cancellation of the preliminary permit. This letter constitutes notice under section 5 of the Federal Power Act of the probable cancellation of the preliminary permit no less than 30 days from the date of this letter. If you have any questions, please contact Michael Tust at (202) 502-6522 or michael.tust@ferc.gov.
Sincerely,
~ Signed ~
David Turner, Chief Northwest Branch Division of Hydropower Licensing
(Last updated on February 5, 2022) The developers of the Cat Creek Energy (CCE) Project seem to be trying to tell authorities their project is so inconsequential and simple they should be allowed to move forward without doing the required studies and research necessary to prevent environmental damage around a large section of land just 2o miles northeast of Mountain Home, Idaho.
In response to CCE’s attempt to sneak out on doing the right thing for the residents of Idaho, the City of Boise wrote a letter telling the regulatory agency that there is much concern about the entire project. Read the full letter below.
“Many People Think the Cat Creek Energy Project Deserves More Scrutiny, Not Less Scrutiny”
The proposed location of the Cat Creek Energy Project
Some of the facts about this complex project
The Cat Creek Energy project isn’t simple. It’s a complex project that will greatly affect lands within Elmore County.
Constructing the proposed Cat Creek Reservoir will entail also building a powerhouse, transmission infrastructure, transporting equipment, building new roads, and permanently disrupting a water supply diversion will surely degrade the environment and wildlife habitat of deer and elk within game Management Units 39, 43, 44 and 45.
The Cat Creek Energy project is controversial despite what the developers want you to believe. There are fifteen organizations/entities that have submitted documentation and data opposing the CCE water rights applications to Idaho’s Department of Water Resources to divert 100,000 acre-feet of water out of the Anderson Ranch Reservoir. By definition, that makes it controversial.
Cat Creek Energy falsely insists the studies that will be completed by the US Government for the proposed plan to raise Anderson Ranch Reservoir by 6 feet will answer some or even all of the environmental issues facing the Cat Creek Energy project. It can’t and it won’t because they are completely different projects.
On behalf of the City of Boise (City), we submit these comments in response to the request by Cat Creek Energy (CCE) to utilize the Traditional Licensing Process (TLP) for licensing this project. For FERC’s consideration as to whether the TLP is appropriate, rather than the default Integrated Licensing Process (ILP), we offer the following:
1. Likelihood of timely license issuance: No comment.
2. Complexity of the resource issues: CCE states they have conducted extensive research and data collection on potential resource issues and intend to use the Bureau of Reclamation’s (Reclamation) Anderson Ranch Dam raise feasibility study and EIS as supporting documentation of resource issues. CCE acknowledged in the transmittal letter that the project is large but believes the resource issues and environmental impacts in the area qualify as minor. The City disagrees that the impact on resources and the environment in the project area qualify as minor. A project of this nature and scale is inherently complex. Constructing a new reservoir with powerhouse and transmission infrastructure, transporting equipment, building new roads, and permanently disrupting a water supply diversion is dramatically different than raising an existing dam 6 feet as Reclamation is proposing. The City is concerned that much of the information provided in the recent past (of the studies noted above) is research and data that has only limited applicability and relevance to the extent and nature of this specific project.
3. Level of anticipated controversy: CCE indicated a level of coordination with local, state, and federal agencies and stakeholders that would represent this project as having a low level of controversy. The City is one of fifteen original protestants of the CCE water right applications to Idaho’s Department of Water Resources to divert 100,000 acre-feet of water out of the Anderson Ranch Reservoir, suggesting otherwise. These protestants include state and local agencies, irrigation districts and canal companies, environmental groups, and individual water rights holders on the Boise River. Such a broad group of protestants with varied interests and concerns demonstrates the complexity of this large surface water storage project and its potential impacts.
4. Relative cost of the TLP compared to the ILP: No comment.
5. The amount of available information and potential for significant disputes over studies: CCE specifically notes their intent to rely on Reclamation’s feasibility study and EIS as supporting study and data collection for their project in addition to their own research. Again, the City points out that Reclamation’s project and CCE’s project are significantly different in scope and operation, with considerable differences in the magnitude of expected impacts. Reclamation’s feasbility and EIS will shed light on the types of issues to be expected with CCE’s proposed project but should not be used in lieu of a comprehensive suite of project-specific studies to identify a complete list of impacts and the magnitude of those impacts.
6. Other factors believed to be pertinent: The City is supportive of clean energy projects in the Treasure Valley and across the West. We believe that is the future of energy production. However, these projects must be accomplished while also protecting and enhancing the environmental resources along the Boise River and within this watershed.
We are available for further comment or clarification by contacting 208-608-7950.
Best regards,
Mary Grant
Deputy City Attorney
cc: John Roldan, Water Resources Manager
Originally published on February 5, 2022.
We believe the entire Cat Creek Energy project needs to be significantly scaled back or canceled altogether.
(Last updated on February 4, 2022) The developers of the proposed Cat Creek Energy (CCE) Project in Elmore County, Idaho are still trying desperately to move forward in 2022. For the past 5 years, CCE has insisted their project centered around a large-scale wind project and the creation of a new reservoir on Little Camas Prairie will solve water and energy problems in Mountain Home and the rest of Elmore County.
The Elmore County Commissioners are hosting a public hearing on Feb. 4, 2022, at 11 am in the county courthouse to determine if Cat Creek Energy should get a two-year extension for their highly complex project in our backcountry. It is our opinion that Cat Creek Energy has wasted enough of our government’s time trying to push through a project that will be more harmful to wildlife and tourism than can ever be recouped by the entire energy project.
Here is the public notice published on January 19, 2022:
BOARD OF ELMORE COUNTY COMMISSIONERS NOTICE OF PUBLIC HEARING FOR EXTENSION OF APPROVALS GRANTED TO CAT CREEK ENERGY, LLC CONDITIONAL USE PERMITS (CUP-2015-03, CUP-2015-04, CUP 2015-05, CUP-2015-06. AND CUP-2015-07) BY ELMORE COUNTY AND A RESOLUTION GRANTING THE SAME
NOTICE IS HEREBY GIVEN that on Friday, February 4, 2022, at the hour of 11:00 a.m. in the Elmore County Courthouse, downstairs in the Commissioner’s room, 150 South 4th East, Mountain Home, ID 83647, a public hearing will be held for extension of the valid time period for approvals granted to Cat Creek Energy, LLC Conditional Use Permits (CUP-2015-03, CUP-2015-04, CUP-2015-05, CUP-2015-06, and CUP-2015-07) due to a stay in proceedings occasioned by pending litigation.
The Elmore County Board of County Commissioners (the “Board”) entered into a Development Agreement on February 9, 2018, with Cat Creek Energy, LLC (the “Development Agreement”) for live Conditional Use Permits (CUP-2015-03 for Transmission Lines, CUP-2015-04 for Pump Storage Hydro Facility, CUP 2015-05 for PV Solar Power, CUP-2015-06 for Wind Turbines, and CUP-2015-07 for Electric Substation). The Development Agreement stated that “the Conditional Use Permits shall be valid for a period of time for five (5) years from February 10, 2017 and maybe extended for one 2-year period upon application to the Elmore County Land Use (and Building Department (“Department”).” The Extension of Approval requests are reviewed by the Land Use and Building Department under Elmore County Code 7-3-17. The code requires a hearing with the Board because the approval period for the live CUPs was established through the Development Agreement.
All interested persons shall be heard at said hearing and the public is welcome and invited to submit testimony. Testimony will be limited to extension of the valid time period for the five CUPs. The Board reserves the right to set time limits on testimony, and if implemented, the time limits will be announced at the start of the hearing. Anyone may submit written testimony prior to the hearing by sending it to the Elmore County Land Use and Building Department (the “Department”), 520 East 2nd South Street, Mountain Home, Idaho. 83647. The record for this matter may be reviewed prior to the hearing at the Land Use and Building Department and all the Elmore County Clerk’s Office, 150 South 4th East, Mountain Home, Idaho, during regular business hours.
A common way of locating the property from Mountain Home for the said CUPs, is to travel North on US 20 for 25.4 miles to Wood Creek Road, The center of projects is approximately 3.2 miles north on Wood Creek Road.
The Elmore County Board of Commissioners is responsible for ensuring compliance with the Americans with Disabilities Act of 1990 (ADA). Any person needing special accommodations to participate in the public hearing should contact the Elmore County ADA Coordinator, Kacey Ramsauer, 24 hours prior to the Public Hearing at 208-587-2130 ext. 1254, via email VOIT, or in person at 520 East 2nd South, Mountain Home.
SHELLEY ESSL, CLERK BOARD OF COMMISSIONERS ELMORE COUNTY, IDAHO
1 Publication: January 19, 2022
We will try to get the transcripts from this meeting if they are published on the county website.
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.
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.
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.
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.
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:
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.
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.
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?
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
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
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.
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.
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.
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
