(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 Saturday, April 9, 2022) – On February 11, 2022, the Elmore County Commissioners granted Cat Creek Energy a new two-year extension to begin construction on their massive energy project in the mountains northeast of Mountain Home, Idaho. This was both a mistake and outside the realm of their responsibilities in our opinion. In short, we believe the development agreement only allows an extension to be granted if the project is likely to be operational in two years. In fact, the project has barely begun the FERC approval process, has no water rights nor environmental impact report. The list is long but one thing we know is that Cat Creek Energy has consistently failed to meet most deadlines.
The S Bar Ranch has filed the following Request for Reconsideration motion with the county commissioners. A reconsideration public hearing with the county commissioners will be held on Friday, April 15, 2022, at 1:30 pm in the Elmore County Courthouse in Mountain Home. Prior to that public hearing, concerned citizens may file written comments regarding the proposed new extension until Tuesday, April 12, 2022. Comments will also be accepted at the Friday, April 15 hearing.
We hope you will let your Elmore County Commissioners know your thoughts and concerns about this extension.
Land Use and Building Department
520 East 2nd South Street Mountain Home, ID 83647 Phone: (208) 587-2142 ext 1256 Fax: (206) 587-2120 www.elmorecounty.org
Date: March 23, 2022
To: Whom It May Concern
Subject: Notice of Public Hearing
Applicants: Merlyn W. Clark for S Bar Ranch LLC
Case #: Reconsideration of EOA-2022-01
Proposal: S. Bar Ranch appeals to the Elmore County Board of County Commissioners for reconsideration of Extension of Approval granted to CUP-2015-03, CUP-2015-04, CUP-2015-05, CUP-2015-06, and CUP-2015-07.
A public hearing will be held before the Elmore County Board of County
Commissioners (the “Board”) on Friday, April 15, 2022, at the hour of 1:30 p.m.
in the Elmore County Courthouse, downstairs in the Commissioner’s room, 150
South 4th East, Mountain Home, ID 83647, for reconsideration of the extension
of approvals granted to Cat Creek Energy, LLC Conditional Use Permits (CUP-
2015-03, CUP-2015-04, CUP-2015-05, CUP-2015-06, and CUP-2015-07).
The Board issued its Findings of Fact, Conclusions of Law, and Order on
February 11, 2022 (following a public hearing on February 4, 2022) for granting
a one-time two-year time extension for the five CUPs as provided for in the
Development Agreement signed on February 9, 2018. S Bar Ranch, LLC, filed a
timely request for the Board to reconsider its Findings of Fact, Conclusions of
Law, and Order and rescind the order for the approval of time extension(s) on
the CUP(s). The reconsideration request is reviewed by the Land Use and
Building Department under Elmore County Code 7-3-12. The Director has
conferred with the Board and the Board has granted a reconsideration hearing.
Please review the request and provide your written comments to the
Elmore County Land Use and Building Department, 520 East 2nd South Street,
Mountain Home, ID, 83647, by 5:00 p.m. on Tuesday, April 12, 2022, so your
comments are included in staff report. All interested persons shall be heard at
said hearing and the public is welcome and invited to submit testimony.
Testimony will be limited to reconsideration of extension(s) of the CUP(s).
The Elmore County Board of Commissioners is responsible for ensuring
compliance with the Americans with Disabilities Act of 1990 (ADA). Any person
needing special accommodations to participate in the public hearing should
contact the Elmore County ADA Coordinator, Kacey Ramsauer, 24 hours prior to
the Public Hearing at 208-587-2142 ext. 1254, or email ADA@elmorecountv.org.
(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.
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.
BEFORE THE DEPARTMENT OF WATER RESOURCES
OF THE STATE OF IDAHO
IN THE MATTER OF APPLICATION FOR PERMIT NOS. 63-34403, 63–34652, 63–34900 AND 63–34987 IN THE NAME OF CAT CREEK ENERGY LLC
ORDER GRANTING PETITION FOR CLARIFICATION
BACKGROUND
On June 10, 2020, the Idaho Department of Water Resources (“IDWR”), issued the Amended Order Consolidating Dockets and Parties; Order to Reorganize Applicant’s Rule 40.05 Information; Order Establishing Protective Order Procedure; Order Authorizing Discovery; Notice of Continue Prehearing Conference (“Amended Order Consolidating Dockets”). The Amended Order Consolidating Dockets authorized parties to this matter to immediately conduct and engage in discovery pursuant to IDAPA 37.01.01.521.
On June 24, 2020, the Idaho Department of Fish and Game (“IDFG”) filed a Petition for Clarification (“Petition”). IDFG asked the Director to clarify whether “the parties may conduct discovery to the full extent allowed by IDAPA 37.01.01.520.02 (“Rule 520.02”) and the Idaho Rules of Civil Procedure for each application and that the limits on interrogatories set forth in I.R.C.P. 33[(a)J(l )1 will apply to each application individually and not to the four applications as a whole.” Petition at 3.
On July 1, 2020, Cat Creek Energy, LLC (“Cat Creek”) filed its Applicant’s Response to Petition for Clarification (“Response”). Cat Creek requested “the Director enter an order clarifying that the Rule 33 requirement limitation of 40 interrogatories applies to the consolidated cases, with parties being permitted to make interrogatories that pertain to multiple applications counting as a single interrogator [y].” Response at 2.
ANALYSIS
IDFG and Cat Creek both assert discovery in this matter is governed by the Idaho Rules of Civil Procedure (“I.R.C.P.”). The Director agrees. I.R.C.P. 33(a)(1) limits parties to 40 written interrogatories, including subparts, unless otherwise stipulated to or ordered.
IDFG asserted that absent consolidation, parties could have submitted forty interrogatories for each distinct application. Petition at 2. IDFG asserted it needs to preserve the ability to posit 40 interrogatories for each application because each application proposes a distinct beneficial use. Id.
___________________
1 I.R.C.P. Rule 33(a)(1) states: “Number. Unless otherwise stipulated or ordered by the court for good cause allowing a specific additional number of interrogatories, a party may serve on any other party no more than 40 written interrogatories, including all discrete subparts.”
Cat Creek responded that with more than 20 protestants in the consolidated docket, allowing up to 160 interrogatories per protestant could place it in the position of responding to more than a thousand interrogatories. Response at 1. Cat Creek argued federal and state rules have recently been changed to clamp down on the moden trend of excessive discovery. Id. In this case, “the fact that the applications are interrelated, that they divert water from the same point of diversion and from the same source, and that water is stored in the same reservoir, means that Cat Creek’s discovery responses will in most cases be identical for all four applications.” Id. at 2. Cat Creek would instead have the Director allow only 40 interrogatories related to the consolidated docket, but requests could pertain to all four applications, by including, for example, the following statement: “If certain information applies to less than all of the Applications, identity which Applications it pertains to.” Id.
The purpose of case consolidation is to attempt to reduce and alleviate duplicative procedure, to increase efficiency, and to decrease burdens on participating parties. However, case consolidation does not end or eliminate an application’s individual character or identity. If each application would have proceeded individually, parties would have been allowed 40 interrogatories toward each individual application under I.R.C.P. 33(a)(1). Consolidation does not remove that opportunity.
However, the Director has the authority to order a change in the scope of discovery under Rule 520.02 and I.R.C.P. 33(a)(1) (“Unless otherwise stipulated or ordered [emphasis added] by the court for good cause allowing a specific number of interrogatories . . . .”). I.R.C.P. 26(C) also provides the Director the authority to limit the frequency or extent of discovery if
the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
the burden or expense of the of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.
I.R.C.P. 26(C). In any of those instances, IDWR may “issue protective orders limiting access to information generated during . . . discovery . . . .” IDAPA 37.01.01.532.
At this time the Director will allow 40 interrogatories per application, as allowed under I.R.C.P. 33(a)(1). However, as discovery in this matter moves forward, any party may move the Director for a protective order according to Rule 532 under the rationale expressed in I.R.C.P. 26(C)(i), (ii), or (iii).
ORDER
IT IS HEREBY ORDERED that, pursuant to I.R.C.P. 33(a)(1), 40 interrogatories are allowed each party, for each of Application for Permit Nos. 63-34403, 63-34652, 63-34900, and 63-34987, in the name of Cat Creek Energy, LLC.
DATED this 15th day of July, 2020.
~ Signed ________________
GARY SPACKMAN
Director
###
Thanks for taking an interest in our efforts to shut down this large scale and unnecessary energy project in the backcountry of southwestern Idaho. We’ve come a long way in exposing how bad the project will be for the local landowners, residents of Elmore County, and our natural resources.
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.
