Camas Prairie, Elmore County, Idaho

Tag Archives: Water Rights

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


Kimberly D. Bose Secretary
Federal Energy Regulatory Commission 888 First Street, N.E.
Room 1A
Washington, DC 20426 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.




Many People Think the Cat Creek Energy Project Deserves More Scrutiny

(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

  1. The Cat Creek Energy project isn’t simple. It’s a complex project that will greatly affect lands within Elmore County.
  2. 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.
  3. 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. 
  4. 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. 


A City of Boise Letter About a Complex Project


Submission Date: 1/31/2021

From: Mary R Grant, Boise Deputy City Attorney

Dear Secretary,

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.



July 15, 2020 – Idaho Water Resource Board Tells Cat Creek they Can’t Limit Discovery

The water source for the Cat Creek Energy Project

On July 15, 2020, the Idaho Water Resource Board ordered that Cat Creek Energy will have to follow state laws that allow all concerned parties to obtain critical information about the large scale energy complex proposed for Elmore County, Idaho. 

Prior to the ruling by Gary Spackman from the Department of Water Resources of the State of Idaho, Cat Creek Energy sought to limit the information citizens could obtain about a project that would use Idaho’s natural resources and water. And, let’s be honest … if the Cat Creek Energy Project was good for the people of Idaho and will supposedly be a cash cow for the residents of Elmore County, why would they try to hide information about that project. 

To read the full document from the IDWR, download it here







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

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 (“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.


IDFG and Cat Creek both assert discovery in this matter is governed by the Idaho Rules of Civil Procedure (“I.R.C.P.”). The Director agrees. I.R.C.P. 33(a)(1) limits parties to 40 written interrogatories, including subparts, unless otherwise stipulated to or ordered. 

IDFG asserted that absent consolidation, parties could have submitted forty interrogatories for each distinct application. Petition at 2. IDFG asserted it needs to preserve the ability to posit 40 interrogatories for each application because each application proposes a distinct beneficial use. Id.


1 I.R.C.P. Rule 33(a)(1) states: “Number. Unless otherwise stipulated or ordered by the court for good cause allowing a specific additional number of interrogatories, a party may serve on any other party no more than 40 written interrogatories, including all discrete subparts.”

Cat Creek responded that with more than 20 protestants in the consolidated docket, allowing up to 160 interrogatories per protestant could place it in the position of responding to more than a thousand interrogatories. Response at 1. Cat Creek argued federal and state rules have recently been changed to clamp down on the moden trend of excessive discovery. Id. In this case, “the fact that the applications are interrelated, that they divert water from the same point of diversion and from the same source, and that water is stored in the same reservoir, means that Cat Creek’s discovery responses will in most cases be identical for all four applications.” Id. at 2. Cat Creek would instead have the Director allow only 40 interrogatories related to the consolidated docket, but requests could pertain to all four applications, by including, for example, the following statement: “If certain information applies to less than all of the Applications, identity which Applications it pertains to.” Id.

The purpose of case consolidation is to attempt to reduce and alleviate duplicative procedure, to increase efficiency, and to decrease burdens on participating parties. However, case consolidation does not end or eliminate an application’s individual character or identity. If each application would have proceeded individually, parties would have been allowed 40 interrogatories toward each individual application under I.R.C.P. 33(a)(1). Consolidation does not remove that opportunity. 

However, the Director has the authority to order a change in the scope of discovery under Rule 520.02 and I.R.C.P. 33(a)(1) (“Unless otherwise stipulated or ordered [emphasis added] by the court for good cause allowing a specific number of interrogatories . . . .”). I.R.C.P.  26(C) also provides the Director the authority to limit the frequency or extent of discovery if

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

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

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).


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 ________________



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. 

Anthony M. Jones Response to CCE’s Motion for Protective Order – June 30, 2020

What the Anderson Ranch Reservoir view might look like when the Cat Creek Energy project is finished.

Anthony Jones was retained by the S Bar Ranch to evaluate Cat Creek Energy’s Motion for Protective Order regarding its planned pumped hydroelectric storage facility on Little Camas Prairie in Elmore County, Idaho. That planed pumped hydroelectric storage facility entails creating a new reservoir on the bluffs about 800 feet above Anderson Ranch Reservoir. The proposed water right that would be used to fill the Cat Creek Energy Reservoir currently doesn’t exist.

Mr. Jones researched the Cat Creek Energy idea of building the pumped hydroelectric storage facility, plus a large scale solar and wind turbine complex. His conclusions tell us the financial viability of the Cat Creek Energy project along the Highway 20 Corridor in Elmore County is questionable at best. Mr. Jones also suggests Cat Creek Energy, LLC is trying to keep critical project information and documentation from public scrutiny under a guise of a proprietary exemption. This cannot be allowed to happen.

Read Mr. Jones’ 12 talking points below.   

Download the full Legal Doc from Anthony Jones to Cat Creek Energy's Motion for Protective Order - June 30, 2020 legal document that is partially included below. 


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 Creeks Applications for Water Right Permit Nos. 6334403, 6334652,
34897 and 6334900, Idaho Code 42203A(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 Creeks 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
. 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 IPCs most recent 2019 Amended
Integrated Resource
Plan (“IRP”). In the IRP, IPC gives pumped storage an economic thumbs
, noting, Historically, the differential between peak and offpeak energy prices in the
Pacific Northwest has
not been sufficient enough to make pumped storage an economically
viable resource
.” (Page 54 of IPCs 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
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
, 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 CCEs solution to energy storage
an improvement on the same process studied and shelved by the regions major utilities or
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

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
, the cost and income relationships associated with CCEs wind, solar, pumpstorage,
, municipal water, and irrigation district operations, etc., for the life of the project. The
only potentially confidential items that may need redaction would be the identity of the parties
committing to provide the capital
. This redacted information should be provided to the Hearing
Officer, however

I declare under penalty of perjury that the foregoing is true and correct.

DATED THIS 30th day of June, 2020.



~ signed ~
Anthony M
. Jones



You can download the full legal document at

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. 

S Bar Ranch Protests Cat Creek Energy’s Motion for Protective Order – June 30, 2020

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.

Download the full 9.25 mb pdf file at S Bar Ranch, LLC, response to Cat Creek Energy's Motion for Protective Order


The Response to Cat Creek Energy’s Protective Order

Dana L. Hofstetter, ISB No. 3867
Attorneys for Protestors SBar Ranch, LLC and The
at ParkCenter, LLC

Protestors SBar Ranch, LLC and The District at ParkCenter, LLC
these Protestors”), and hereby respectfully respond to the Applicant, Cat Creek
, LLC’s (“Cat Creekor “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
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
.) 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
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, CCEs proprietary claims are overbroad and threaten to
interfere with the partiesability to ensure the financial resources criterion in Idaho
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
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
, prospective balance sheets, the cost and income
relationships associated with CCE’s wind, solar, pumpstorage,
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
~203A(5)(d) to disclose. In a number of ways, the Protective Agreement proposed by CCE is
overbroad to protect the limited confidential information that may be in CCE’s financial

  1. 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
  2. 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
  3. 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?
  4. 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
    in this proceeding, including, likely, CCE’s own counsel
  5. 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. CCEs
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
. These Protestors have no other use for the Rule 40.05 information other than
protecting their own interests
. These Protestors will comply with the Directors 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
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
11 documents:

CCEC00343List of Surrounding Groundwater Wells (1 pg.)
C01217June 4, 2020, USFS comment letter to IDWR (2 pgs.)
D-00015Civil Site Plan (1 pg.)
-D-00016Electrical DiagramNot for Construction (1 pg.)
-D-00029Conceptual General Arrangement Substation (1 pg.)
-D-00021Preliminary Not for ConstructionGeneral Arrangement Substation (1 pg.)
-D-00022PreliminaryNot for Construction Switching Diagram Substation (1 pg.)
-D00023Financing Sources (2 pg.)
-D-00025Preliminary Transmission Line Sketches (10 pgs.)
-D-00035 Preliminary Plan 115kv lines (1 pg.)
X-00039TimelineMajor Milestone Dates (3 pgs.)

Unfortunately, as reflected in the updated Spronk Water Engineers chart attached hereto as
A, the addition of these 11 documents do little, if anything, to address the inadequacies
in CCEs Rule 40.05 submission. The chart in Exhibit A details the significant gaps in CCEs
Rule 40.05 information that remain

For the foregoing reasons, these Protestors respectfully request that the Director deny
s Motion for Protective Order and issue an order requiring CCEs compliance with Rule
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

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
  • Claim diversions only in high flows and that Water Master
    will ensure no injury but no information on how CCE
    will be designed, constructed, operated or
    administered on a real
    time basis to protect other water

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



Idaho Power Protests Cat Creek Energy’s “Lack of a Water Right Plan”

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. 



From: Idaho Power Company


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
6. For such other and further reasons as may be discovered or set forth at the hearing
on this matter.

DATED this 8th day of June 2020.



John K. Simpson
Attorneys for Idaho Power Company



Idaho Fish and Game are Concerned About Cat Creek Energy

By Brambleshire – Own work, CC BY-SA 3.0,

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



IN THE MATTER OF APPLICATION FOR PERMIT NOS. 63-34403, 63-34652, 63-34900,

AND 63-34987 (Cat Creek Energy LLC)



COMES NOW, the Idaho Department of Fish and Game (“IDFG”) pursuant to IDAPA, .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” 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 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 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 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.



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