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!

Federal Regulatory Commission Tells Cat Creek to Submit Progress Reports Now

(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.

Below is a copy of the letter the FERC sent to Cat Creek Energy in April 2022, or download the pdf file at https://catcreek-energy.com/wp-content/uploads/2022/04/FERC_overdue-progress-report-13Apr2022.pdf

FEDERAL ENERGY REGULATORY COMMISSION

Washington, D.C. 20426

April 13, 2022

OFFICE OF ENERGY PROJECTS

Project No. 14655-001-Idaho
Cat Creek Energy and Water Storage Project
Cat Creek Energy, LLC

VIA Electronic Mail

James Carkulis
Cat Creek Energy, LLC
jtc@ccewsrps.net

RE: Overdue Progress Report

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

__________________
1167 FERC ¶ 61,046.

Originally published on April 13, 2022

Thanks,

A Concerned Group of Idaho Residents!

FERC Requests Info from Cat Creek Energy

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.

FERC Request Cat Creek Provide Additional Information by March 8, 2019

The Federal Energy Regulatory Commission (FERC) has requested additional information from Cat Creek Energy, LLC regarding their planned Pumped Storage Hydroelectric Project on Little Camas Prairie. Cat Creek Energy has until March 8, 2019, to answer the questions contained in the “Schedule A” document located at the bottom of this post.

The letter and Schedule A can also be directly downloaded here … http://catcreek-energy.com/download/874/

FEDERAL ENERGY REGULATORY COMMISSION
WASHINGTON, D. C. 20426
February 21, 2019

OFFICE OF ENERGY PROJECTS

Project No. 14655-001–Idaho
Cat Creek Energy Generation Facility
Pumped Storage Hydroelectric Project
Cat Creek Energy, LLC

James Carkulis
Cat Creek Energy, LLC 398 S. 9th Street, Suite 240
Boise, ID 83702

Subject: Additional Information Request Dear Mr. Carkulis:

After reviewing your successive preliminary permit application filed on November 9, 2018, for the Cat Creek Energy Generation Facility Pumped Storage Hydroelectric Project No. 14655-001 and the comments filed on the application, additional information is needed to continue processing your application. Please provide the information requested in Schedule A within 15 days from the date of this letter.

The Commission strongly encourages electronic filing. Please file the requested information using the Commission’s eFiling system at http://www.ferc.gov/docs- filing/efiling.asp. For assistance, please contact FERC Online Support at FERCOnlineSupport@ferc.gov, (866) 208-3676 (toll free), or (202) 502-8659 (TTY). In lieu of electronic filing, please send a paper copy to: Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Washington, D.C. 20426. The first page of any filing should include docket number P-14655-001.

If you have any questions concerning this letter, please call Karen Sughrue at (202) 502-8556.

Sincerely,

~ signed ~

For David Turner,
Chief Northwest Branch
Division of Hydropower Licensing

Enclosure: Schedule A
Project No. 14655-001

ADDITIONAL INFORMATION

1. In section (iii) of Exhibit 2 of your application, you request a waiver of section 4.81(c)(2) of the Commission’s regulations, which requires the filing of a work plan for new dam construction. S Bar Ranch, LLC, in its motion to intervene and protest, objects to this waiver request.

Section 4.81(c)(3) of the Commission’s regulations allows the Commission to waive the requirements of paragraph (c)(2) upon a showing by the applicant that the field studies, tests, and other activities to be conducted under the permit would not adversely affect cultural resources or endangered species and would cause minor alterations or disturbances of lands and waters, and that any land altered or disturbed would be adequately restored. The federally listed bull trout and its critical habitat are within the proposed project boundary at the Anderson Ranch Reservoir. Neither your permit or the project record clearly describes if you intend to conduct geotechnical studies during the term of the successive permit.

If you intend to conduct geotechnical studies, you must either demonstrate that the studies will not affect cultural resources or endangered species and result in minimal disturbance to land and waters, or file a work plan. In the latter case, the work plan must contain: (i) a description, including the approximate location, of any field study, test, or other activity that may alter or disturb lands or waters in the vicinity of the proposed project, including floodplains and wetlands; measures that would be taken to minimize any such disturbance; and measures that would be taken to restore the altered or disturbed areas; and (ii) a proposed schedule (a chart or graph may be used), the total duration of which does not exceed the proposed term of the permit, showing the intervals at which the studies, investigations, tests, and surveys, identified under this paragraph are proposed to be completed.

2. As explained in your original permit, the proposed project would require a Lease of Power Privilege (LOPP) from the U. S. Bureau of Reclamation (Reclamation) for the use of Anderson Ranch Reservoir. Letters filed by Reclamation on April 4, 2017 and January 31, 2019, indicate that you have begun that LOPP process by receiving approval from Reclamation on October 17, 2016 to be a preliminary leasee for a five- year period. The January 31, 2019 filing also indicates that you have entered into a contributed-funds-agreement contract with Reclamation on May 9, 2017. However both letters indicate that you have not provided the required funding for Reclamation’s review of the project, entered into a preliminary LOPP agreement with Reclamation, or begun conducting the studies required by Reclamation to evaluate project impacts. The letters also indicate that Reclamation does not intend to commit resources to processing your proposed project until the required funding is provided. Reclamation’s January 31, 2019, filing states that if you are still interested in this project that it is critical to initiate these steps to attempt to complete the required LOPP steps by October 16, 2021.

Therefore, please file an update on your efforts at conducting the LOPP process steps with noted in Reclamation’s January 31, 2019 letter.

Cat Creek Energy – A Problem, Not A Solution!

Camas Prairie, Elmore County, Idaho

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