ICIE's Earth Day Art Contest to honor award winners Thursday

ICIE's 2012 Idaho Earth Day encouraged students to examine how the many opportunities we have within our urban environment to interact with nature.  On Thursday, the winners for 2012 will be announced at a special ceremony at the Foothills Learning Center, 3188 Sunset Peak Road, at the end of the 8th Street extension in Boise

Through this project, junior high and high school students learned that nature is not limited to places we visit outside our cities and towns.  People in cities surround themselves with parks, trees and gardens.  Cities develop and maintain parks, walking paths, street trees.  Businesses landscape with plants and trees.  Within the urban environment, we have numerous opportunities to interact with nature, students were challenged to represent their favorite locations within their neighborhood, city or town where they are surrounded by nature.

The purpose of ICIE's annual art contest is to encourage students to think about environmental issues beyond the rhetoric and express that using art and language.  Winners will receive gift certificates to local art supply shops.

Listen to Elemental Idaho, our new environmental public policy show, Mondays at noon on 89.9 KRBX.  This week we'll feature interviews with art contest winners.

When It Reigns It Pours! Federal courts reign in EPA's Clean Water Act authority – a Recap of an Idaho Environmental Forum on April 5, 2012

When John Iani came to Idaho as the Environmental Protection Agency’s (EPA) administrator for Region 10, his first experience was a meeting with then governor Dirk Kempthorne about his agency’s presence in the Silver Valley.  Iani said the meeting was confrontational and illustrative of a common dilemma the regulated community faces when Congress passes laws and leaves them to agencies to implement as best they can.

When Congress doesn’t give enough direction, he said, the impact is felt by the communities and the courts are left to resolve issues.

The Clean Water Act (CWA) is an example of this problem.  The act calls out “water bodies of the United States,” without clearly defining them.  Certainly lakes, rivers, navigable waters would be considered such, but what about tributaries or bodies of water not connected to others?

The Sacketts are a couple who bought a .63-acre piece of property in a platted subdivision, with water and sewer hookups 500 feet west of Priest Lake in North Idaho.  They obtained all the necessary building permits, and had just started work on the house when EPA told them their land was considered a wetland.  The EPA issued an administrative compliance order saying the Sacketts were in violation of the CWA, and that they needed to restore the area to the way it was, and seek a permit to build their house.  They were fined $37,500 for every day that passed where they failed to do so. 

The Sacketts filed an action in federal district court to dispute the order, and lost.  They appealed to the 9^th Circuit Court, who agreed with the district court.  They then went to the Supreme Court which came to the unanimous decision that the compliance order was a final action and should have been open to judicial review.  The Court held that the Sackets were entitled to challenge the compliance order in court.  U.S. Supreme Court Justice Alito wrote a concurring opinion - rejecting the position that private property rights are at the mercy of EPA employees. 

Ultimately, Iani said, Congress needs to step up and clarify what is and is not a water body of the US.  Failing to do so will always leave the agency scratching its heads over what to do next.

Another example of EPA overreach is the case of Mingo Logan Coal.  A project seeking to deposit fill in a water body of the US needs to seek permission under the CWA, Section 404, sub-section C  which says "the Administrator is allowed to deny or restrict the use of any defined area as a disposal site whenever he determines that such deposits will have an adverse impact on water or populations.”  There are no regulations, nor process specified, but it's powerful and rarely used language, allowing the EPA to reverse a decision about a previously approved landfill site at any time.

In the Mingo Logan case, the Army Corps of Engineers issued a permit for the fill of two mines to be deposited into two river-beds.  Three years later, EPA decided it would, for the 13th time in its history, revoke the permit.  A court found against the EPA, where in all 12 previous court cases the court had ruled in favor of them.

"The EPA claimed that the status of a permit is not ever really final,” Iani said, “but what would be the point in requesting a permit if it isn't worth the paper it's printed on and commerce can be interrupted at any point?"

There is another major issue before EPA right now—a mining project in Alaska.  Groups opposed to the project have asked the EPA to allow no mining in that entire area forever.

Bad facts make bad law, Iani said. If the EPA continues to make mistakes under the 404 C clause, Congress will need to look at the CWA to clarify issues.

“I think EPA’s authority on the CWA is being looked at very carefully by the courts. It might be time for Congress to look at it, but that’s not likely now with the current gridlock we see Congress. 

Legislators assert states rights, encourage Sage Grouse Task Force as session winds down

Two other items of interest as this session of the legislature works toward adjourning sine die:

Senate Joint Memorial 105 has passed both houses.  It calls on Congress to reclaim its Constitutional role over the management of species and public lands. The memorial asks “that Congress re-examine, reform and reauthorize the Endangered Species Act, the National Environmental Policy Act, the Equal Access to Justice Act, and any other federal law that disrespects the role of states and local governments in land management decisions and leads to costly and frivolous lawsuits that strip authority from Congress and place it in the hands of the judiciary.”  It was adopted on a voice vote by the Senate and by a vote of 57-10-3 in the House.

Senate Concurrent Resolution 125 was introduced in the Senate on March 1st and adopted by voice vote on March 5^th.  The resolution endorses and encourages the Governor in his efforts “moving forward with the Governor’s Sage Grouse Task Force.”  It moved on to the House and on March 23^rd it was adopted there on a voice vote.

Agriculture, grazing bills, take circuitous routes through legislature

Some bills start the legislative session as a concept that is discussed and revised in the first weeks until the draft is introduced.  Success for these early concepts is not always guaranteed.

H606, the Agriculture Value Added Income Tax Credit, was such a bill.

H606 was introduced on February 29.  The bill will act as incentive for farmers and ranchers to invest in additional facilities which would add value to agriculture in Idaho through additional processing.  For example: encouraging a dairyman to process his milk into cheese that can be sold, rather than send the milk out of state for processing.  This is a means of increasing jobs in rural areas as well as the amount of Idaho commodities being processed.  The bill provides a tax credit of up to 30% of the investment to build a plant or value added process, capping the amount of the credit at $500,000.  This credit may be utilized annually until the cap is reached or for 14 years.  The legislation has a sunset of 2017.

The concept was revised several times before its introduction.  It was introduced in the House and sent the Revenue & Taxation Committee which sent it to General Orders on the floor for amendment.  On March 30, it was passed as amended by a vote of 62-6-2.

It was sent to the Senate and assigned to the Local Government Committee on March 22.  It has not yet been scheduled for a hearing.

Other bills are printed earlier in the session but do not get heard in committee until later in the session, such as S1271, which deals with management plans for grazing leases.  The bill adds a new section to Idaho Code that requires applicants for grazing leases to submit a grazing management proposal as part of the application.  This lets the Department of Lands evaluate whether the proposal is consistent with the Department’s resource objectives and management expectations for those lands.  If the lease is granted, the proposal becomes the management plan for that lease.

S1271 was introduced on January 30^th and sent to the Senate Resources and Environment Committee.  It was not until March 6^th that committee sent it to the Senate floor where it was passed on a vote of 31-0-4.  The next day it was sent to the House and assigned to the Resources and Conservation Committee.  It was sent to the House floor with a do-pass recommendation.  On March 21^st, almost two months later, it passed and is on its way to the Governor.

An update as the Idaho legislature winds to a close ...

An update on several bills tracked this session by Idaho Council on Industry and the Environment:

H 379:  OIL  AND GAS  The oil and gas severance tax is currently collected and audited by the Oil and Gas Commission while a similar tax is collected by the State Tax Commission. The current tax will not cover the administrative expenses of the oil and gas program.  This bill will allow the State Tax Commission to collect both portion of the severance tax and eliminate the redundant tax collection and enforcement.  It also redirects the general fund portion collected by the State Tax Commission to the Oil and Gas Commission.  The intent is to fund the oil and gas program exclusively from dedicated funds generated by production and permit fees.  Excess funds would be transferred to the general fund.

Passed the House 65-2-3 on 2/14/12; passed the Senate 32-0-3 on 3/8/12; delivered to the Governor on 3/14/12

H460:  OIL ANDGAS WELLS  This bill amends existing code to increase the permit fee for drill permit applications from $100 to $2,000 to cover the additional costs of permitting since there is no production yet to pay for the program.   A fee increase is necessary for the program to become self sufficient and reduce the burden on the general fund.  Fees would be placed into an existing dedicated account for the use of the Commission.

Passed the House 64-3-3 on 2/15/12; passed the Senate 32-0-3 on 3/8/12; delivered to the Governor on 3/14/12

H462: PUBLIC UTILITY REGULATION  The legislation puts the Idaho Public Utilities Commission (IPUC) in charge of safety inspections for the gathering pipelines.  Gathering lines are pipelines and other fixtures used to transport, deliver, or distribute natural gas or crude oil from a well-head to a transmission line or mainline.  IPUC has the program and inspectors because they do safety inspections on main transmission lines. 

Passed the House 67-0-3 on2/15/12; passed the Senate  32-0-3 on 3/8/12; delivered to the Governor on 3/14/12.

H463:  OIL ANDGAS CONSERVATION COMMISSION  The definitions provided in statute are not listed alphabetically and some definitions need revision to be more consistent with current industry standards. The confidentiality of oil and gas well logs currently has no time limit. By changing the confidentiality limitation to one year, other oil and gas operators are can access recent well log data. These changes are consistent with the standards of other states, and are meant to encourage, and promote the development and production of oil and gas in Idaho.  In addition the bill updates the enforcement provisions of the Commission  to give it sufficient authority to conserve oil and gas, protect corrective rights, and prevent the pollution of fresh water supplies more effectively.

Passed the House 64-3-3 on 2/15/12; passed the Senate 32-0-3 on 3/8/12; delivered to the Governor on 3/14/12

H464:  OIL ANDGAS  This legislation updates Idaho’s statutes for oil and gas exploration and production. The changes update the law to align it with currently regulatory standards, protect Idaho’s citizens and clarify the authority of the Oil and Gas Conservation Commission.

This legislation clarifies existing law as follows:

• Provide uniformity and consistency in regulation of oil and gas production in Idaho;

•Clarify the Oil and Gas Conservation Commission’s authority over oil and gas exploration and production;

•Clarify local governments’ role in oversight of the oil and gas industry;

•Provide for mitigation of negative impacts to existing water rights or usable water resources;

•Align the definition of injection wells with the Federal2006 Energy Policy Act.

This was the most controversial of all the measures dealing with the development of natural gas in Idaho.   Those testifying against the bill in committee cited loss of local control as their biggest concern. Under the bill,county ordinances and planning and zoning decisions would be superseded by state control. It passed the House on 2/17/12 and moved on to the Senate.  It survived an attempt in Senate Resource and Environment Committee to send it to the amending order.  The committee sent it to floor with a do pass recommendation.  On 3/9 the Senate voted to send it to the amending order instead. On 3/12 it was returned to the third reading calendar where it passed by a vote of 24-10-1 on 3/14/12.

Idaho Business Review panel sheds light on energy projects that utilize waste

OnTuesday, the Idaho Business Review and Holland and Hart presented “Waste to Wattage,” a panel discussion on energy projects that use waste products as fuel.

Ada County Commissioners are pursuing energy conversion projects that reduce the volume of waste at the landfill, said Ada County Commissioner, Sharon Ullman.  The County is working with Dynamis, which uses a controlled gasification process to create energy from garbage.  This process reduces the volume of the garbage it consumes as fuel by 90 to 95 percent. With this project, Ullman said the fuel supply is continuous and the power it provides can be controlled to fill different needs. Ullman said the County has put $2 million into the project, a figure which she said compares favorably to the $30 million cost of burying waste over the past 6 years.  Nevertheless, Ullman said, this decision has opened the county up to criticism.

Dr.Erin Searcy, a bio fuels engineer with the Idaho National Laboratory, works primarily in wood biomass conversion projects and anaerobic digestion.  She noted that resources need to be put into researching conversion technology and posited that, while a cost effective business model for producing energy from waste at the dairy or farm level is not yet available, it is on the horizon. Anaerobic digesters need to be managed carefully, and are 

complicated to operate, although technologies are advancing toward this point every day.

“You can't just throw some poop in a bucket and make it work,” she said of farmb ased efforts, “you need an engineer.”  Dr. Searcy noted that scientists at the Center for Advanced Energy Studies are actively advancing the technology to address some of these challenges.  One example is a project she is working on to pre-ferment the waste material to stabilize the conversionp rocess.  But such efforts take funding.

“One of the things we have to do to move this energy process forward in Idaho is fund research to make farm-based energy projects less complicated,” she said.

Don Strickler, an energy efficiency engineer at Simplot, noted that Simplot plants currently employ utilize anaerobic digesters, utilizing wastewater that comes from the water in processing vegetables.  Bacteria eat the waste and make that gas that can be burned in generators.  

Mark Stokes, with Idaho Power Company, said that his power supply planning group works on the integrated resource planning processes.  They have contracts with anaerobic digesters, which are considered renewable energy projects subject to the Public Utility Regulatory Practices Act of 1978 or PURPA.  He noted that while most states have renewable energy portfolio standard requirements, Idaho does not.  Because of the abundance of renewable energy generation in Idaho, he said, our state is ahead of what the requirements would be in Oregon or Washington without mandated requirements under a portfolio standard.

Peter Richardson is an attorney who represents developers of PURPA projects.  PURPA requires utilities to buy power from small energy developers at the cost to the utility of developing the resource themselves.  Federal law charges the Public Utilities Commission in each state with setting the methodology, the terms and length of the contracts, and the avoided cost rates under PURPA.  

Richardson noted that a bill was under consideration this session that would have tied the renewable power generated by PURPA projects with the Renewable Energy Credits(or RECS) they earned.  He noted that this would make most renewable energy projects uneconomical, as the developers sell those RECs separately as an additional revenue source.

RECs are fictitious units created primarily to track the environmental attributes of renewable projects.  Once renewable portfolio standards began to be set in various states, RECs were developed as a way to track renewable energy.  

Stokes noted that the cost purchasing power from PURPA projects impacts rate payers.  He said if the RECs were attached to the renewable power they purchased, their value would be passed along to rate payers.

But would a change in the law affect plans for new renewable projects?  Does having access to the RECS they generate make renewable projects more marketable?  Richardson noted that the revenue stream from selling the RECS separate from the energy helps other states fulfill their renewable energy obligations under their renewable energy standards portfolios,and keeps small energy developers solvent.

Idaho Business Review will publish a complete story of the round table discussion in its March 23^rd issue.

Following two days of testimony, committee sends oil and gas bill to the Senate

This week, the Senate Resources and Environment Committee’s agenda included five pieces of legislation to regulate Idaho’s nascent oil and gas industry.  These bills passed the House on a 54-13 vote on February 27^th.  As with the hearings on the regulations and inthe House, there was a crowd prepared to testify, many in opposition to the legislation. The hearing began on Wednesday, and continued to Friday to accommodate all those who wanted to speak.

The first bill on the agenda, H464, is meant to clarify existing law to:

• Provide uniformity and consistency in regulation of oil and gas production in Idaho;

•Clarify the Oil and Gas Conservation Commission’s authority over oil and gas exploration and production;

•Clarify local governments’ role in oversight of the oil and gas industry;

•Provide for mitigation of negative impacts to existingwater rights or usable water resources;

•Align the definition of injection wells with the Federal2006 Energy Policy Act.

The chairman cut off the questioning of the presenters infavor of taking input from the public, allowing those from out of town to testify first. Testimony tended to be lengthy, with several objecting to time limits.

Through both sessions of the hearing, those testifying against the bill cited loss of local control as their biggest concern. Underthe bill, county ordinances and planning and zoning decisions would be superseded by state control.  Industry representatives who testified maintained there is considerable local input—in fact, they asserted, more so than in many other states. There was also concern raised about geothermal wells and beneficial uses,and discussion about injection wells.

Another issue raised was that of air quality including references to downwinders, asbestos, birth defects and radon.  The testimony was often emotional even going as far as one person making the point that the residents cannot afford to make campaign contributions or have paid lobbyists as the industry representatives could.

After one of those testifying went to great length to demonstrate that a vote by the Idaho Association of Counties was not proper, an association representative read a letter to clarify the voting process the association used when decided to support the bill. 

After a motion was made to send the bill to the Senate floor with a do-pass, there was extensive discussion by the committee members—even proposing that the bill be held and changes be made to allay some of the concerns brought by those who currently oppose the bill.

At the end of the nearly 4-hour hearing on Friday, the committee voted 6-3 to send the bill to the House floor with a “do pass”recommendation after defeating a substitute motion to send the bill to the amending order.

Port of Lewiston presentation before the Senate Transportation Committee

David Doeringsfeld, Manager of the Port of Lewiston, appeared before the House Transportation Committee with an update of the activities of the port.  He mentioned H557 which is in the House Revenue and Taxation Committee. The bill would change Idaho Code to allow citizens in an area to vote to create a dry land port district.  Port districts can be an economic development tool.  In the state of Washington about 1/3 of 76 port districts are dry land ports.

The Port of Lewiston is intermodal.  It has waterfront operations and is a vital hub of container shipment and grain storage. Swift operates a fleet of about 400 trucks out of the port.

The port is currently in the permitting process with the Corps of Engineers which will allow it to expand the existing dock so it can load and unload barges more efficiently.  The permit process has taken about 18 months so far, but they are only 60 days away from it being finalized.

He discussed the oversized equipment issue. Because of the controversy in using Highway 12, Exxon-Imperial decided to cut the modules in half to reduce the height but that resulted in 5 times the volume of vehicles on the highway than the original 36 modules would have.

There is concern that some environmental groups are trying the limit not just something like the modules but put together a litmus test for what will be allowed on highways.

In the future the port will look for other projects like the oversized equipment; however, the Exxon Imperial project was an anomaly having 200 loads.  That is unlikely to happen again, but smaller loads with fewer modules could generate additional activity at the port.  He said that activity generates other activity which creates jobs.

In answer to a questions by Senator Bilyeu, Doeringsfeld pointed out that the modules in the loads were new containers and did not have any hazardous materials that could leak and pollute the river.

There is another concern with the loss of rail lines in North Central Idaho.   Highways 12 and 95 would then provide the only access to the area.  Lewiston is 100 miles one way and 260 miles the other way from freeway access.   He asked the committee members to remember that and support improvements for Highways 12 and 95.

Moratorium on Wind Farms House committee passes wind moratorium by narrow margin

On Wednesday, the House Local Government Committee moved its meeting the Senate/House Auditorium in anticipation of the large number of people opposed to wind energy wanting to testify in favor of H561.  The bill is sponsored by Rep. Erik Simpson of Idaho Fallsand proposes a two year moratorium on construction of wind turbines and an eight member legislative committee “to adequately and thoroughly assess the wind energy sector in Idahoand make recommendations based on that assessment.”

In the bill’s statement of purpose, Rep. Simpson laid out the rationale for H 561:

“Because of the massive financial incentives offered to wind developers at the federal,state, and local levels,” he said, “wind energy development in Idaho has proliferated at an unprecedented rate. In spite of the action by the Idaho Public Utilities Commission last year, which reduced the cap to 100Kw for wind developers to qualify for the published PURPA rate, wind development in Idaho continues unabated. Simply put, the negative impacts of wind energy on wildlife,residents, property owners, taxpayers, and utilities continues to be of concern.”

The list of those wishing to testify was lengthy. All but five were against the moratorium for a variety of reasons.  Those opposing H561 included farmers and ranchers, landowners and developers from across southern Idaho. They cited economic development, jobs, and local tax dollars from thesep rojects as reasons for their opposition to the moratorium.  They were concerned about private property rights and the possibility that many projects that are already started would be stopped before completion and the investments would be lost.

The few that testified in favor of the moratorium talked of wind turbines within 600 feet of their homes, the impacts of turbine shadows, noise and their private property rights.  They felt that they were fighting international corporations and vested interests as well.

After more than three hours of testimony and numerous questions by the committee members, H561 was sent to the House floor with a do-pass recommendation on a vote of 6-5.

Senate bill may put Idaho at risk for wolf relisting

Senate Bill 1305 sponsored by Senator Siddoway and passed through the Senate Resources and Conservation committee aims to put tools in the hands of landowners and livestock owners burdened by depredation of their herds and guard dogs by wolves.  As the committee learned in a hearing on Wednesday, the bill might also put the wolf back on the table for re-listing.

At issue is a tenant of the bill that would allow the use of live bait in attracting wolves to be trapped or shot.  Senator Siddoway said he was astonished at the reaction from the public on the subject, and that people were expressing more compassion for the animal serving as live bait, than for dozens of sheep or 18 guard dogs he’d lost to wolves.  While Senator Stennet said she was confident that Siddoway’s intent was not to open the door to animal cruelty, and was equally sure he would not leave an animal of his unprotected, she was also concerned that the bill fails to specify the parameters under which live bait could be used and proper precautions to prevent cruelty by others.

Senators Werk and Cameron agreed on language in the bill that they said was problematic.  The bill says landowners may make use of the tools available to them “notwithstanding any other provisions of Idaho law.” Siddoway said that particular statement was based on the case of an Ashton, Idaho resident who faced criminal charges after killing two wolves in his front yard he feared were a threat to his children.  Siddoway also cited cases where landowners who were legally hunting coyotes at night with artificial light feared prosecution from Fish and Game officials.

Senator Cameron was unsatisfied with that explanation,saying the language made it possible for an individual illegally hunting after hours to claim that he was participating in a wolf depredation hunt under the law.

“That 'notwithstanding' language creates a hole that a person could drive a Mac truck through,” he said. 

Senator Werk agreed.

“The language about ‘notwithstanding’ is about as broad an exemption as any I’ve ever seen,” he said.

Werk also expressed concern about the live bait tenant of the bill.  He said because the parameters for using such a tool weren’t properly established.

“With live bait, whether or not the intent is to have individuals that would be engaging in the practice that would be diligent in protecting the live bait,” he said, “there’s nothing in this code that would dictate that anyone would need to be diligent.”

Senator Tippets said that he had spoken with Congressman Mike Simpson who said that if this bill passes, wolves might likely be relisted.  Although Tippets said he supported further examining this possibility, at issue was the rights of Idahoans to protect their personal property.

“When is enough, enough?” He asked. “The majority of Idahoans did not favor introducing wolves in the first place.  ….  I don’t know if this is the perfect solution, but I think we need to provide something to these landowners to protect their livestock.”

The bill passed on a 7 to 2 roll call vote, with Stennet and Werk opposing.

Bill would limit the liability of irrigators in damage to property

The Resources and Conservation Committee heard testimony on Thursday on a bill that would limit the liability of irrigation districts for damages due to an act of God or a third party. 

This bill would make things clearer for water delivery entities, attorneys and those on the bench, said Norm Semanko of the Idaho Water Users Association, who also noted that while it is becoming increasingly difficult to insure canal companies because of lawsuits, this bill does not limit irrigation districts’ need to exercise a reasonable duty of care.

A number of residents who live near canals testified in opposition to the bill.  One Boise resident noted that excess rainwater flooding the canal behind her home breached the banks of the canal and caused about $50,000 to her home.

“We feel that the canal company, even though this is an act of god, does share some of the responsibility to maintain a level that can handle excess rainwater into the canal,” she said.  “With this legislation, it would not be possible to bring this litigation before an objective body.”

Darin Coon of the Nampa Irrigation District noted that canal facilities are designed to carry a specific amount of water, not an extraordinary amount of water introduced by uncontrolled third parties.   Tort claims are filed against the district, and are rarely ever filed against the 3^rd parties that cause the discharge to the irrigation facilities.

Boise resident Jane Hachburg testified against the bill, arguing that the term “reasonable care” is too loose.

“Canal companies are concerned about frivolous law suits,” she said, “but those testifying today challenge that notion that property owners would enter into a lawsuit frivolously.  These laws have been in place for more than 100 years; please don’t be in a rush to change them.”

The bill was approved by the committee with a do pass recommendation.

PUC shares PURPA primer and an overview of Renewable Energy Credits

On Valentine’s Day, Idaho Public Utilities Commissioners Marsha Smith and Paul Kjellander briefed the House Environment, Energy & Technology Committee with some background information on the Public Utilities Regulatory Policies Act (PURPA) and Renewable Energy Credits (REC).

Commissioner Smith discussed PURPA which was passed in 1978 to encourage conservation of electric energy and to promote greater use of domestic renewal energy   The law forced regulated monopoly electric utilities to buy power from other small producers of renewable energy.  The Federal Energy Regulatory Commission (FERC) delegated primary authority to the states.

There are two classed of generation facilities:  small production facilities (like small hydro projects) and co-generation facilities that produce electric power and heat.  Utilities must purchase the power at avoided costs from the generating facilities.

FERC still has primary jurisdiction.  One important factor is what it would cost the utility to build or buy a project; however avoided cost does not take into account federal or state tax credits.  FERC does the rates for wholesale power and the states do the rates for retail sales.

If the utility buys power, the cost is passed through to the ratepayers.  If the utility builds the power source, the cost is passed on through the rates as well as a 10% rate of return.

Commissioner Kjellander reviewed renewable energy credits (RECs) which exist with or without PURPA.  A REC is a piece of paper which represents the equivalent of 1 mw pf power that has been generated by a renewable energy source.  RECs can be sold separately from the project or decoupled.  The question is whether the producer owns the REC or the utility which buys the power gets the REC.

RECs are important when a state has a renewable portfolio standard (RPS) which mandates that utilities must produce a certain amount of power from renewable sources.  Utilities in states with an RPS comply by showing that they are holding enough RECS to meet the standard.

Customers can choose to buy renewable power without a renewable portfolio standard.  The project that produces that power can sell the RECs to someone who needs to comply with an RPS.  RECS are traded through direct transactions or through a broker.  A REC can be used only once.

Policy Makers Consider Sage Grouse

On Monday, a joint meeting of the Senate Resources & Environment Committee and the House Resources & Conservation Committee held a State and Federal Sage Grouse Oversight Hearing.

Virgil Moore, Director of Idaho Department of Fish & Game led off the hearing pointing out that  Idaho is trying to forge a state direction for recovery of sage grouse.

Sage grouse has a biology that is different than that of other ground birds.  They have a low reproductive rate.   They live a long time which presents a different management issue.  Their winter survival rate is very high for land birds and they are very migratory.  Sage grouse home range can often be over 200,000 acres which complicates management.  Total habitat is 15 million acres, of which 10 million is a priority.

Because hens and chicks are so well camouflaged, the males who are much more visible are counted and an estimated number is derived.  There has been downward trend of males returning to the communal breeding grounds known as leks.  Males have a high fidelity to strutting areas.

Currently, hunting for sage grouse is highly restrictive and limited hunting is allowed if an area’s population is sustainable.

Bill Meyers, an attorney with Holland and Hart discussed the litigation history of sage grouse.  In 2005, U.S. Fish & Wildlife Service (USFWS) determined that sage grouse did not warrant protection.  That decision was challenged in court by Western Watersheds.  A review led to a decision by the agency that sage grouse listing as endangered was “warranted but precluded” because of the number of species seeking listing and the danger of extinction was moderate.

Another lawsuit was settled giving the agency until 2015 to make a decision.  There are nine ESA cases pending that have been filed by Western Watersheds.

There are 11 states with sage grouse habitat.  The USFWS plus BLM and the Forest Service are putting pressure on the states to move forward on recovery efforts.  Sage grouse habitat recovery will impact all the other multiple uses on BLM land.  All other activities are second priority behind sage grouse.

Nate Fisher, Administrator of the Idaho Office on Species Conservation talked from the biological, legal and policy perspective and what the path forward might be.  This is not an issue just in Idaho but in 10 other Western states.  Idaho was one of the first states to organize local working groups—12 of them.  Congress did provide some funding for the groups but the work has all been voluntary.  USFWS feels there are inadequate regulatory mechanisms that could lead to recovery with Idaho’s efforts. 

Sage grouse could be the spotted owl of the sagebrush steppe.  There is now a sage grouse planning initiative which will cover 11 states.  BLM might move forward with greater restrictions on the entire area –not just the areas where there are birds.

Wyoming has put together a strategy that USFWS says may meet the regulatory requirements.

A continuing issue is how to reconcile a hunting season with the listing.  The question is who decides when there are sufficient numbers of sage grouse across the range of habitat.  Idaho has a huge amount of the best habitat.  The Governor is very interested in working with Wyoming.

House Committee Takes on Oil and Gas Legislation.

OnThursday afternoon, the House Resources & Conservation Committee took testimony on several bills dealing with oil and gas exploration.  H462 put the Idaho Public Utilities Commission (IPUC) in charge of safety inspections for the gathering pipelines.  Gathering lines are pipelines and other fixtures used to transport, deliver, or distribute natural gas or crude oil from a well-head to ultimately a transmission line or mainline.  IPUC has the program and inspectors because they do safety inspections on main transmission lines.  There was no one to offer testimony and the committee sent it to the House floor with a do-pass recommendation.

H460 amends existing code to increase the permit fee for drill permit applications from $100 to $2,000 to cover the additional costs of permitting since there is no production yet to pay for the program.   There was no testimony and it was also sent to the House floor with a do-pass.

The next two bills (H463, H379) which updated definitions listed in the code governing oil and gas production and proposed updated penalty amounts; and updated the tax code with applies to oil and gas production also passed by voice vote and without any testimony being offered.

Then came H464 which is meant to clarify existing law to:

• Provide uniformity and consistency in regulation of oil and gas production in Idaho;

•Clarify the Oil and Gas Conservation Commission’s authority over oil and gas exploration and production;

•Clarify local governments’ role in oversight of the oil and gas industry;

•Provide for mitigation of negative impacts to existing water rights or usable water resources;

•Align the definition of injection wells with the Federal 2006 Energy Policy Act.

Rep.Andrus opened questioning by the committee referring to hundreds of e-mails against injection wells and fracking which the committee has received and asked about the injection well issues.  Suzanne Budge with the Idaho Petroleum Council pointed out that Idaho has not been delegated by EPA to administer a Class 2 injection well program  These are regulated by the EPA as outlined in the federal Safe Drinking Water Act.    Committee members asked very specific questions about the legislation dealing with waste water disposal,clarifications of the role of the state and local government in the permitting process; protection of drinking water and then opened the floor to public testimony

Mostof the 25 people signed up to testify opposed to the bill.  Testimony against the bill revolved around lack of local control and short public comment periods under county administrative permitting procedures. The bill was seen as an attempt to short circuit a Washington county ordinance that has not been finalized.  Others felt the language of the bill was vague and set precedents that co-opted local control and local land use planning. 

Commissioners Larry Church and Marc Shigeta from Payette County supported the legislation because,they said, counties do not have the expertise to deal with gas and oil production.  They also pointed out that the bill required notification of county government and sharing of all documents concerned with permitting.  Two commissioners from Washington County opposed the bill.

Many of those who testified so passionately against the bill had also testified passionately against the rules that resulted from the negotiated rulemaking during the summer and fall.  Some had participated in the meetings but others objected that the rules were done without enough stakeholder input.

When one gentleman testified about a specific phase in the legislation as sounding like something that came from communist Russia, a legislator pointed out to him that that particular phrase was not new but has been in that section of Idaho Code for a number of years.

The testimony lasted until 5:00 pm at which time the committee voted unanimously with a voice vote to send the bill to the House floor with a “do pass”recommendation.  And industry pledged to bring legislation next year if corrections were needed.

Senate Resources and Conservation Committee carries over rules on oil and gas industry

Discussion on a pending Department of Lands rule governing the oil and gas extraction industries has been carried over until Monday as all those who signed up to testify at last week’s hearing still may not have had a chance to do so on Wednesday.

Those who were able to testify this week included a number of Idaho citizens who were residents of Payette County and Justin Hayes of the Idaho Conservation League.  Hayes says his organization has concerns about the rules on several levels:

-       Hayes said while appropriate amounts may have been set for an individual well bond, a blanket bonding procedures would allow for economy of scale, which would bring the per well cost down considerably.

-       Fracking fluids remain a concern, which Hayes says make the entire rule untenable.  ICL objects to what they say are fluids with cancer causing chemicals being injected into the ground, regardless of how safe the companies assert the system is.  Disclosure of the exact contents of the fluids is immaterial, Hayes says, as he’s less interested in hearing about exactly what’s being injected, than he is about knowing dangerous compounds don’t have the potential to enter the aquifer.  Merely disclosing a company is going to use them would not preclude them from using them.

"We are in a very interesting spot in Idaho, where we are creating rules from whole cloth since gas has just been discovered here,"   Hayes said.  "In other states the oil and gas industry had a tremendous amount of sway, because the industry has been established.  I don't think we need to be bound to the aspects of rules that aren't so great in other states.  These industries have prevailed in their toxic chemicals rules in other states.  I'd like to see them not prevail here."

Can the Forest products industry and conservationists work together?

An Idaho Environmental Forum program this week illustrated that there is reason to hope for progress, however slow, in the decades-long struggle over management of Idaho forests.

Bill Higgins with the Idaho Forest Group and member of the Clearwater Basin Collaboration and John McCarthy, with the Idaho Forest Campaign and the Idaho Wilderness Society talked about shared values between their respective ideologies including the need to repair disturbances, manage fires, maintain habitats and infrastructure and encompass the needs of local communities.

McCarthy noted that there are several reasons to be involved in the collaborative process: to work together to repair problems, build resilience and protect the products that we have in the forest.  The key idea from both the conservation and industry perspectives is that of resiliency, he said.

“Are we better off with fire being the agent of change in our forests with or without human intervention?” McCarthy said.  “Does it make sense to change fuels, change fire management options, hopefully changing the results from fires? People can argue about it all they want, but today’s climate is drier and hotter and longer fire seasons and we are going to have more fires.”

McCarthy acknowledged that environmentalists have often played the foe to the forest products industry.  They were also unhelpful to themselves in advocating for forest practices that didn’t help the forest, he said. 

For proof of the success of collaborative effort, McCarthy pointed to efforts like the Owyhee Initiative.  He said other people think there is another key value in forest production industries, but this fact doesn’t cause a conflict with conservation.

“We're not trying to drive people out of the woods,” He said.  “We're not for no-cut policies.  I can work with Bill (Higgins), because he understands and accepts my core values of wilderness.”

For his part, Higgins noted that he once found the problems at hand with forest management collaboration as too big to tackle.

“Before I got involved in collaboration, I'd look at the lack of activity that's going on out there and think this was too big of an issue to handle,” he said. “Well, it's a new day, and these collaborative efforts are affecting change.”

Higgins noted the Clearwater Collaborative was generated from a lawsuit by a motorized access group that wanted access in the Bitterroot divide.  A group of people got together to go through the long and arduous process about identifying the right groups to be represented, and ultimately have a seat at the table.

Higgins said federal lands represent one of the best opportunities for growth in Idaho.  

“Federal lands are an underutilized asset, both through higher utilization of forest products and as a recreation destination,” he said.  “They have not been carrying their weight economically.  Doing so doesn't require an ecological sacrifice; we can simultaneously improve ecological and economic conditions.”

Higgins said he has learned things in his four years with the Clearwater Collaborative about how to have an effective collaboration. 

“Everybody has to have some skin in the game,” he said. “Everybody has to have something to gain and something to lose.”

 “We hope this is the end of the Timber Wars,” he said.  “It's not all about timber, it's about recreation and land protections and all types of conservation.

Excerpts from the State of the State and Budget Address by Governor Butch Otter on Monday, January 9, 2012

The following are excerpts from Governor C.L. "Butch" Otter's State of the State Address

….I want to see an Idahothat is more independent, dynamic, diverse and built on a foundation offreedom, personal responsibility and public accountability.  I want to see an Idaho focused not on scarcity or what welack, but on a more prosperous and hopeful future for all of us.

           

It’s with that Idahoin mind that I set my top two budget and policy priorities for 2012 and thislegislative session.  And the reality is,those two priorities are inseparable—jobs and education….

You will continue to see my administration focus onre-establishing the proper role of State government in our lives….

You also will see a greater emphasis on ensuring the efficiencyand prudent frugality that we’ve established in every agency of Stategovernment during the past three years become standard procedure.

But you also will see a greater emphasis on buildinginnovative public-private partnerships that leverage our limited resourcestoward advancing and achieving our shared goals.  That’s especially true when it comes tofulfilling the benchmarks of Project 60, putting more of our 65,000 unemployedIdahoans back to work and preparing our citizens to fill more of 18,500 jobsthat now remain vacant…..

Partnership is the key to a new program…It’s called IGEM forIdaho Global Entrepreneurial Mission. It’s patterned on successful programs in Utah and Virginia. A similar concept is being applied in Colorado, and industry increasingly iswrapping its arms around the idea….

IGEM involves industry, entrepreneurs, higher education, theIdaho National Laboratory and the Center of Advanced Energy Studies.  Together, their focus will be on creatingvalue on campuses that will help our existing businesses grow, nurture thestartup of new businesses, and create more jobs and opportunities for Idaho……..

The modest but targeted and responsible General Fundincrease I am proposing for public schools is the right path forward.  It will help our limited taxpayer resourcesgo further and make our K-12 education system more effective andcustomer-driven….I’m additionally proposing to fully fund the cost ofenrollment growth going forward at our universities, colleges and communitycolleges……

That’s why the budget I’m submitting to you proposes tobegin refilling our reserve accounts in preparation for the next unforeseen“rainy day.”  My Executive Budget calls for setting aside a total of $60 million in the Public Education StabilizationFund, the Budget Stabilization Fund, and the new Higher Education StabilizationFund…..

We have little control over the vagaries of the world andnational economy.  But we can ensureeconomic opportunity finds a welcoming home here in Idaho. Ladies and gentlemen, that’s why I’ve proposed that we set aside $45million for tax relief in Fiscal 2013…there’s also broad consensus on the needto reduce the burden both on our hard-working taxpayers and on those employerswho are looking for opportunities to grow our economy while creating careersand livelihoods.

We can seek to more equitably reward our most valued Stateemployees for continuing in public service. ..To that end, I’m proposing thatwe set aside $41 million from the General Fund in Fiscal 2013 to reward ourmost deserving employees, including our public school teachers.