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.