(1) The general assembly finds, determines, and declares that the location, construction, and improvement of major electrical and natural gas facilities are matters of statewide concern. The general assembly further finds, determines, and declares that:
A reliable supply of electric power and natural gas statewide is of vital importance tothe health, safety, and welfare of the people of Colorado;
Electric power is transmitted by means of an interconnected grid system serving every area of the state, and natural gas is carried through a series of interconnected pipelines statewide;
Impacts on the electric grid system or natural gas pipelines in one area of the statemay have impacts on other areas of the state; and
It is critical that public utilities and power authorities that supply electric or naturalgas service maintain the ability to meet the demands for such service as growth continues to occur statewide.
Local government land use regulations must require final local government action onany application of a public utility or a power authority providing electric or natural gas service that relates to the location, construction, or improvement of major electrical or natural gas facilities within one hundred twenty days after the utility's or authority's submission of a preliminary application, if a preliminary application is required by the local government's land use regulations, or within ninety days after submission of a final application. If the local government does not take final action within such time, the application is deemed approved. Within twenty-eight days of the submission by a utility or authority of an application pursuant to this subsection (2), the local government shall notify the utility or authority of any additional information that must be supplied by the utility or authority to complete the application. The notice must specify the particular provisions of the local government's land use regulations that necessitate submission of the required information. The one hundred twenty- or ninety-day period, as applicable, during which the local government is to take action on an application commences on the date that the utility or authority provides the requested information to the local government in response to the notice required by this subsection (2). If the local government does not notify the utility or authority within twenty-eight days that additional information is required to complete the application, the one hundred twenty- or ninety-day period, as applicable, commences on the date of the submission by the utility or authority of its application, and any request by a local government for additional information after the completion of the twenty-eight-day period does not extend the applicable deadline for final local government action in accordance with the requirements of this subsection (2). A local government may request additional information from a state agency, and the state agency shall submit the additional information within the initial twenty-eight-day period if the request is made within a reasonable amount of time. In no event shall a request for additional information, or a failure by a state agency to provide the additional information requested, extend any deadline for local government action or notification as set forth in this section. Nothing in this subsection (2) shall be construed to supersede any timeline set by agreement between a local government and a utility or authority applying for local government approval of location, construction, or improvement of major electrical or natural gas facilities as defined in subsection (3) of this section.
As used in this section, "major electrical or natural gas facilities" includes one ormore of the following:
Electrical generating facilities;
Substations used for switching, regulating, transforming, or otherwise modifying thecharacteristics of electricity;
Transmission lines operated at a nominal voltage of sixty-nine thousand volts or above;
Structures and equipment associated with such electrical generating facilities, substations, or transmission lines; or
Structures and equipment utilized for the local distribution of natural gas serviceincluding, but not limited to, compressors, gas mains, and gas laterals.
(4) (a) A public utility or power authority shall notify the affected local government of its plans to site a major electrical or natural gas facility within the jurisdiction of the local government prior to submitting the preliminary or final permit application, but in no event later than filing a request for a certificate of public convenience and necessity pursuant to article 5 of title 40, C.R.S., or the filing of any annual filing with the public utilities commission that proposes or recognizes the need for construction of a new facility or the extension of an existing facility. If a public utility or power authority is not required to obtain a certificate of public convenience and necessity pursuant to article 5 of title 40, C.R.S., or file annually with the public utilities commission to notify the public utilities commission of proposed construction of a new facility or the extension of an existing facility, then the public utility or power authority shall notify any affected local governments of its intention to site a major electrical or natural gas facility within the jurisdiction of the local government when such utility or authority determines that it intends to proceed to permit and construct the facility. Following such notification, the public utility or power authority shall consult with the affected local governments in order to identify the specific routes or geographic locations under consideration for the site of the major electrical or natural gas facility and attempt to resolve land use issues that may arise from the contemplated permit application.
(b) In addition to its preferred alternative within its permit application, the public utility or power authority shall consider and present reasonable siting and design alternatives to the local government or explain why no reasonable alternatives are available.
(5) (a) If a local government denies a permit or application of a public utility or power authority that relates to the location, construction, or improvement of major electrical or natural gas facilities, or if the local government imposes requirements or conditions upon such permit or application that will unreasonably impair the ability of the public utility or power authority to provide safe, reliable, and economical service to the public, the public utility or power authority may appeal the local government action to the public utilities commission for a determination under section 40-4-102, C.R.S., so long as one or more of the following conditions exist:
The public utility or power authority has applied for or has obtained a certificate ofpublic convenience and necessity from the public utilities commission pursuant to section 40-5101, C.R.S., to construct the major electrical or natural gas facility that is the subject of the local government action;
A certificate of public convenience and necessity is not required for the public utilityor power authority to construct the major electrical or natural gas facility that is the subject of the local government action; or
The public utilities commission has previously entered an order pursuant to section40-4-102, C.R.S., that conflicts with the local government action.
Any appeal brought by a public utility or power authority to the public utilities commission under this section shall be conducted in accordance with the procedural requirements of section 40-6-109.5, C.R.S. In addition to the formal evidentiary hearing on the appeal, conducted in accordance with the procedural requirements of section 40-6-109, C.R.S., the public utilities commission shall take statements from the public concerning the appealed local government action at an open hearing held at a location specified by the local government.
An appeal brought pursuant to this subsection (5) shall include a statement of thereasons why the local government action would unreasonably impair the ability of a public utility or power authority to provide safe, reliable, and economical service to the public.
The public utilities commission shall balance the local government interest with thestatewide interest in the location, construction, or improvement of major electrical or natural gas facilities. In striking such balance, the public utilities commission shall render a decision that is consistent with article 65.1 of title 24, C.R.S., including section 24-65.1-105, C.R.S., and the commission shall consider the following factors:
The demonstrated need for the major electrical or natural gas facility;
The extent to which the proposed facility is inconsistent with existing applicablelocal or regional land use ordinances, resolutions, or master or comprehensive plans;
Whether the proposed facility would exacerbate a natural hazard;
Applicable utility engineering standards, including supply adequacy, system reliability, and public safety standards;
The relative merit of any reasonably available and economically feasible alternativesproposed by the public utility, the power authority, or the local government;
The impact that the local government action would have on the customers of thepublic utility or power authority who reside within and without the boundaries of the jurisdiction of the local government;
The basis for the local government's decision to deny the application or imposeadditional conditions to the application;
The impact the proposed facility would have on residents within the local government's jurisdiction including, in the case of a right of way in which facilities have been placed underground, whether those residents have already paid to place such facilities underground, and if so, shall give strong consideration to that fact; and
The safety of residents within and without the boundaries of the jurisdiction of thelocal government.
The public utilities commission shall deny any appeal brought under this sectionunless the public utility or power authority has complied with the notification and consultation requirements of subsection (4) of this section.
The public utilities commission may consult with the department of local affairs onland use issues in connection with any appeal. All information provided by the department of local affairs to the public utilities commission shall be part of the official record of the appeal and shall be subject to cross-examination or comments by the parties to the appeal.
Unless otherwise specified in this subsection (5), the appeal shall be conducted inaccordance with article 6 of title 40, C.R.S., including the provisions of section 40-6-116, C.R.S., concerning any stay or suspension of the final determination made by the public utilities commission.
Nothing in this section shall be construed to limit or diminish the right of a publicutility, power authority, or local government to appeal a local government, public utility, or power authority action, decision, or determination to a court of law pursuant to any other provision of law, or any appeal brought in connection with any decision by the public utilities commission under this subsection (5). Appeals brought under this paragraph (h) shall be given priority over other pending matters.
Nothing in this section shall be construed to limit the authority of a municipal government to require or grant a public utility franchise.
Source: L. 2000: Entire section added, p. 1608, § 1, effective July 1. L. 2001: (1)(d) and (2) amended and (4) and (5) added, p. 593, § 2, effective May 30. L. 2005: (2) amended, p. 315, § 1, effective August 8. L. 2014: (2) amended, (HB 14-1129), ch. 82, p. 324, § 1, effective August 6.