Colorado Certificate of Public Convenience and Necessity (8-CO-c)
In Colorado, the Colorado Public Utilities Commission (Commission) requires developers, which fall under the definition of “public utility” and “cooperative electrical associations” that choose not to be regulated as public utilities, to apply for a Certificate of Public Convenience and Necessity (CPCN) for new construction and extension of transmission facilities. Colo. Code Regs. tit. 4 § 723-3-3206.
“Public utility” is defined, in part, as “…every…electrical corporation…person or municipality operating for the purpose of supplying the public for domestic, mechanical or public uses, and every corporation or person declared by law to be affected with a public interest…” Colo. Rev. Stat. § 440-1-103(1)(a)(I). The law defines “person” as “any individual, firm, partnership, corporation, company, association, joint stock association, and other legal entity.” Colo. Rev. Stat. § 40-1-102(10). CEAs are utilities owned by the member-consumers they serve and regulated by those member-consumers, acting through an elected governing body. Colo. Rev. Stat. § 40-9.5-101.
CEAs that choose not to be regulated as public utilities will be exempt from the CPCN requirement if they meet certain criteria. The developer must comply with local government regulation regardless of whether a CPCN is required. Colo. Rev. Stat. § 40-5-101(1)(b)(3).
Certificate of Public Convenience and Necessity Process
8-CO-c.1 - Notify Affected Local Governments of Project Plans
A developer falling under the definition of a public utility or CEA must not construct or install a new facility, plant, or system within the territorial boundaries of a local government unless the construction or installation complies with the local government's zoning rules, resolutions, or ordinances. Colo. Rev. Stat. § 40-5-101(1)(b)(3).
Pursuant to the above statute, a developer must notify the affected local government of its plans to site a major electrical facility within the jurisdiction of the local government. The developer must notify 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 (CPCN) 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. Colo. Rev. Stat. § 29-20-108(4)(a).
After receipt of notification, the developer must obtain the applicable permits from each affected local government. The developer may obtain these additional permits simultaneously with the proceedings for the CPCN. The Colorado Public Utilities Commission (Commission) may issue a CPCN without possession of all the local permits. See, Colorado - C.R.S. 40-5-101 - New Construction - Extension - Compliance with Local Zoning Rules.
8-CO-c.2 to 8-CO-c.4 - Will the Transmission Be Constructed by a Public Utility or a Cooperative Electrical Association?
Public utilities must request a CPCN for all projects the Commission considers not “in the ordinary course of business.” CEAs, under certain circumstances, will not need to request a CPCN from the Commission.
CEAs are exempt from the CPCN requirement if the association has elected to exempt itself from Public Utilities Law under C.R.S. 40-9.5-103 and the construction or extension is contained entirely within the CEA’s certificated area. Colo. Code Regs. tit. 4 § 723-3-3206.
8-CO-c.5 – Is the Project in the Ordinary Course of Business?
Public utilities and CEAs (which do not meet the above mentioned exemption requirements) must request a CPCN for new construction or extension of transmission facilities that are deemed by the Commission to not be “in the ordinary course of business.” The Commission makes an assessment of whether the project is constructed in the “ordinary course of business” on a case-by-case basis, but there are a number of factors the Commission generally takes into account when making the determination, including:
- Whether the facilities service continuous areas to expand service to new customers;
- Expansion of service into other non-contiguous areas within a utility’s certified service territory;
- New supply source connections;
- The accounting treatment of facilities;
- The existence of any other utilities that may be impacted by the new facilities;
The Commission may also look at the factors below to determine whether the proposed project is in the “normal course of business”:
- Size, cost and planned operation of the project;
- Whether the project is necessary to serve load growth;
- The presence of novel financing arrangements, which usually indicate that the project is not in the ordinary course of business;
- Whether the project from other distribution system expansions in the ordinary course of business to serve current and anticipated customers.
The Commission also stated that the “normal course of business includes only that which is routine, ordinarily-occurring, and usual for the business under review.”
For new construction, a CPCN is required for projects meeting the following criteria:
- Transmission facilities designed at 230Kv or above, even if initially operated at a lower voltage. However, a radial transmission line designed at 230Kv or above that serves a single retail customer and terminates at that customer’s premises will not require a CPCN application.
- Transmission facilities designed at 115Kv or 138Kv if the facilities do not meet the noise and magnetic field thresholds listed in Colo. Code Regs. tit. 4 § 723-3-3206(e) and (f) or the Commission determines that the facilities are not in the ordinary course of business. Colo. Code Regs. tit. 4 § 723-2-3206(b)(II).
For the extension of an existing facility, the developer must file a CPCN for projects meeting the following criteria:
- Modification to any existing transmission facility that results in the increase in the noise or magnetic field levels and such levels are above the thresholds listed in Colo. Code Regs. tit. 4 § 723-3-3206(e) and (f). Colo. Code Regs. tit. 4 § 723-3-3206(c)(1).
- Modification to any existing transmission facility so that it will be operated at a higher voltage, with or without conducter replacement, unless a CPCN has already been approved for the operation of the transmission facility at a higher voltage or unless the upgrade is to a voltage less than 230Kv and the noise and magnetic field thresholds listed in 4 C.C.R. 723-3-3206(e) and (f) are met. Colo. Code Regs. tit. 4 § 723-3-3206(c)(2).
8-CO-c.6 and 8-CO-c.7 – Request Notification from the Commission that a CPCN Will Not Be Required
If the project meets exemption requirements or is in the ordinary course of business, then the developer may request notification from the Commission that a CPCN will not be required. No public utility or cooperative electric association, which has voted to exempt itself pursuant to CRS 40-9.5-103 may commence new construction, or extension of transmission facilities or projects until either the Commission notifies the utility that such facilities or projects do not require a CPCN or the PUC issues a CPCN. Colo. Code Regs. tit. 4 § 723-3-3206(a)
8-CO-c.8 — Application for CPCN
The developer must submit a complete CPCN seeking approval by the Commission to provide service to a new geographic area, enter a franchise agreement, or to construct and operate a facility or an extension of a facility. Colo. Code Regs. tit. 4 § 723-3-3002(a), Applications. All applications, at minimum, must include, either in the application or in appropriately identified attached exhibits:
- The name and address of the applying utility;
- The name(s) under which the applying utility is, or will be, providing service in Colorado;
- The name, address, telephone number, facsimile number, and e-mail address of the applying utility's representative to whom all inquiries concerning the application should be made;
- A statement that the applying utility agrees to answer all questions propounded by the Commission or its Staff concerning the application;
- A statement that the applying utility shall permit the Commission or any member of its Staff to inspect the applying utility's books and records as part of the investigation into the application;
- A statement that the applying utility understands that, if any portion of the application is found to be false or to contain material misrepresentations, any authorities granted pursuant to the application may be revoked upon Commission order;
- In lieu of the separate statements required by subparagraphs (IV) through (VI), a utility may include a statement that it has read, and agrees to abide by, the provisions of subparagraphs (IV) through (VI);
- A statement describing the applying utility’s existing operations and general service area in Colorado;
- For applications listed in 3002(a)(I), (II), (III), (V), and (VI), a copy of the applying utility's or parent company’s and consolidated subsidiaries’ most recent audited balance sheet, income statement, statement of retained earnings, and statement of cash flows so long as they provide Colorado specific financial information;
- A statement indicating the town or city, and any alternative town or city, in which the applying utility prefers any hearings be held;
- Acknowledgment that, by signing the application, the applying utility understands that:
- (A) The filing of the application does not by itself constitute approval of the application;
- (B) If the application is granted, the applying utility shall not commence the requested action until the applying utility complies with applicable Commission rules and any conditions established by Commission order granting the application;
- (C) If a hearing is held, the applying utility must present evidence at the hearing to establish its qualifications to undertake, and its right to undertake, the requested action; and
- (D) In lieu of the statements contained in (A) through (C), an applying utility may include a statement that it has read, and agrees to abide by, the provisions of subparagraphs (b)(XI)(A) through (C).
- An attestation which is made under penalty of perjury; which is signed by an officer, a partner, an owner, an employee of, an agent for, or an attorney for the applying utility, as appropriate, who is authorized to act on behalf of the applying utility; and which states that the contents of the application are true, accurate, and correct. The application shall contain the title and the complete address of the applicant (developer).
In addition to the requirements of specific rules, all applications must include the information listed (a)(I) through (V) of 4 CCR 723-3-1310. Applying utilities may either include the information in the application itself, or incorporate the information by reference to the miscellaneous docket created under rule Colo. Code Regs. tit. 4 § 723-3-1310.
An application for a CPCN to construct and to operate facilities or an extension of a facility must include, in the following order and specifically identify, the following information:
- (I) The information required above.
- (II) A statement of the facts (not conclusory statements) relied upon by the applying utility to show that the public convenience and necessity require the granting of the application or citation to any Commission decision that is relevant to the proposed facilities.
- (III) A description of the proposed facilities to be constructed.
- (IV) Estimated cost of the proposed facilities to be constructed. If the facility is a transmission facility, the estimated costs must be itemized as land costs, substation costs, and transmission line costs.
- (V) Anticipated construction start date, construction period, and in-service date.
- (VI) A map showing the general area or actual locations where facilities will be constructed, population centers, major highways, and county and state boundaries.
- (VII) As applicable, electric one-line diagrams.
- (VIII) As applicable, information on alternatives studied, costs for those alternatives, and criteria used to rank or eliminate alternatives.
- (IX) As applicable, a report of prudent avoidance measures considered and justification for the measures selected to be implemented.
- (X) For transmission construction or extension, the utility must also comply with rule Colo. Code Regs. tit. 4 § 723-3-3206.
The developer should follow the filing instructions pursuant to Colo. Code Regs. tit. 4 § 723-1-1204, Filing.
8-CO-c.9 to 8-CO-c.10 — Review Application Materials for Completeness
The Commission will review the application materials to ensure completeness. Within 15 days from the date a developer files an application, the Commission must provide notice of the application to any person, who in the opinion of the Commission, may be affected by the grant or denial of the application. Colo. Code Regs. tit. 4 § 723-1-1206, Commission Notice. The notice must state:
- The name and address of the applicant (developer);
- The caption and proceeding number of the proceeding;
- The date the application was filed;
- A brief description of the purpose and scope of the application;
- Whether the applicant (developer) has filed testimony and is seeking a Commission decision within 120 days, or has waived the time limits under Colo. Rev. Stat. 40-6-109.5, Hearings on Applications;
- The date by which any objection, notice of intervention as of right, motion to permissively intervene, testimony or any other document must be filed;
- A statement that the Commission may consider the application without a hearing if:
- no notice of intervention as of right or motion to permissively intervene is timely filed, or
- no notice of intervention as of right or motion to permissively intervene requests a hearing and contests or opposes the application; and
- A statement that any person who files an objection, notice of intervention as of right, motion to permissively intervene, testimony, or any other document must do so in accordance with the instruction set forth in the notice; and that the Commission may dismiss or strike any such document not filed in accordance with the instructions set for in the notice.
8-CO-c.11 to 8-CO-c.12 — Will the Construction Lead to a Rate Change?
If the construction leads to a rate change for the public, then the developer should keep the following rules in mind:
According to CRS 40-3-104(1)(a), in the case of a public utility other than a rail carrier...no change shall be made by any public utility in any rate, fare, toll, rental, charge, or classification or in any rule, regulation, or contract relating to or affecting any rate, fare, toll, rental, charge, classification, or service or in any privilege or facility, except after thirty days' notice to the Commission and the public.
The developer must give notice to the Commission regarding the rate change. The developer must file and keep open for public inspection new schedules stating plainly the changes made in the schedules and the time when the changes will go into effect. CRS 40-3-104(1)(c). The developer must give the notice within seven (7) days after filing an application with the Commission. Colo. Code Regs. tit. 4 § 723-3-3002(d), Applications.
For public utilities, additional notice is required prior to an increase or other change in any rate, ...classification, or service and may be made, at the option of the public utility, by any of the following methods:
- Publication of a notice in each newspaper of general circulation in each county in which the public utility provides service;
- Mailing of a notice to each affected customer of the public utility during the first twenty days of the thirty-day period prior to the effective date of the increase or change;
- Inclusion of an insert in the bill mailed to each affected customer of the public utility during a regular billing cycle not later than the twentieth day of the thirty-day period prior to the effective date of the increase or change; or
- Upon application by the public utility, such other manner as the commission may prescribe.
8-CO-c.13 — Submit Public Comment
The Commission may accept oral or written comments from the public concerning any proceeding. Colo. Code Regs. tit. 4 § 723-1-1509(a), Public, Academic, or Policy Comments.
8-CO-c.14 to 8-CO-c.15 — Assess Application for Approval
The Commission must assess the application for technical administrative completeness. The and respond, in writing, to permit applications within a reasonable time. The period may not exceed 60 days. If the Commission needs additional information from the applicant (developer) to make a decision, the Commission must set a reasonable time for response following the receipt of the additional information. Colo. Rev. Stat. 24-65.1-108(1).
In addition, when the Commission denies a permit, the denial must specify:
- The regulations, guidelines, and criteria or standards used in evaluating the application;
- The reasons for denial and the regulations, guidelines, and criteria or standards the application fails to satisfy; and
- The action that the applicant (developer) would have to take to satisfy the state agency's or commission's permit requirements.
8-CO-c.16 — CPCN
The developer must comply with the terms and conditions of the CPCN as the Commission may designate. Colo. Rev. Stat. 40-5-103, Certificate-Application for-Issuance.
8-CO-c.17 — Petition for Rehearing, Reargument, or Reconsideration (If Applicable)
Any party may file an application for Rehearing, Reargument or Reconsideration (RRR) of any Commission decision or of any recommended decisions that becomes a Commission decision by operation of law. Colo. Code Regs. tit. 4 § 723-1-1506(a), Rehearing, Reargument, or Reconsideration.
No response to an Application for RRR may be filed, except upon motion. Any motion for leave to file a response must demonstrate a material misrepresentation of a fact in the record; an incorrect statement or error of law; an attempt to introduce facts not in evidence; accident or surprise, which ordinary prudence could not have guarded against; or newly discovered facts or issues material for the moving party which that party could not, with reasonable diligence, have discovered prior to the time the application for RRR was filed. Colo. Code Regs. tit. 4 § 723-1-1506(b), Rehearing, Reargument, or Reconsideration.
The Commission may waive or shorten response time to a motion requesting leave to file a response to an application for RRR upon the motion of a party or on its own motion if it is found that time is of the essence or the requested relief is unopposed. The Commission can act immediately after the grant of the waiver or the expiration of the shortened of response time. Colo. Code Regs. tit. 4 § 723-1-1506(c), Rehearing, Reargument, or Reconsideration.
Any party must file an application for RRR, or a motion for an extension of time in which to file such an application, within 20 days after the date of the Commission decision, or after the date on which a recommended decision by a hearing Commissioner or an Administrative Law Judge has become the decision of the Commission. A motion for extension of time based upon the unavailability of a transcript shall show that the transcript request was filed within seven (7) days of the date on which the Commission decision was mailed. Colo. Code Regs. tit. 4 § 723-1-1506(d), Rehearing, Reargument, or Reconsideration.
An application for RRR does not stay the Commission’s decision unless the Commission orders a stay. If the Commission does not act upon an application for RRR within 30 days of its filing, the application is denied and the Commission’s decision is final. Colo. Code Regs. tit. 4 § 723-1-1506(e), Rehearing, Reargument, or Reconsideration.
8-CO-c.18 — Appeal (If Applicable)
Any party to the proceeding may appeal the Commission’s decision within 30 days to the District Court. CRS 40-6-115(1), Review by District Court.
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- Colorado — Colo. Code Regs. tit. 4 § 723-3, Rules Regulating Electric Utilities
- Colorado – Colo. Rev. Stat § 40-1-103, Public Utility Defined
- Colorado — Colo. Rev. Stat. § 40-1-102, Definitions
- Colorado - Colo. Rev. Stat. § 40-9.5-101, Cooperative Electrical Associations - Legislative Declaration
- Colorado - Colo. Rev. Stat. § 40-5-101 - New Construction - Extension - Compliance with Local Zoning Rules
- [[Colorado - C.R.S. 29-20-108 - Local Government Regulation], Colorado - Colo. Rev. Stat. § 29-20-108, Local Government Regulation]]
- Colorado -- Colo. Code Regs. tit. 4 § 723-3-3206 - Construction or Extension of Transmission Facilities
- Colorado - Colo. Rev. Stat. § 40-9.5-103, Exemption from "Public Utilities Law"