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Colorado Local Transmission Siting Approval (8-CO-d)

Information current as of 2020
Colorado’s transmission permitting process reflects both state and local government involvement. The process is highly decentralized, taking place primarily at the local government level. For the purposes of bulk transmission facility siting, local government is defined as, “a county, home rule or statutory city, town, territorial charter city, or city and county.” Colo. Rev. Stat. § 24-65.1-102(2),(5). In 1974, HB 1041 was enacted which allows local governments to voluntarily adopt regulations to identify, designate, and regulate through permitting “areas and activities of state interest.” Colo. Rev. Stat. § 24-65.1-101(2)(b). The site selection and construction of major facilities of a public utility are among those activities considered to be of “state interest.” Colo. Rev. Stat. § 24-65.1-203(1)(f). The statute defines “major facilities of a public utility” , in part, as “transmission lines, power plants and substations of electrical utilities.” Colo. Rev. Stat. § 24-65.1-104(8)(b). “Electrical utilities” 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.” Colo. Rev. Stat. § 40-1-103(1)(a)(I).

No utility may build an electric transmission facility within the borders of any local government without complying with the local government’s zoning rules. Colo. Rev. Stat. § 40-5-101(1)(b)(3).

State involvement in the transmission siting process is more limited. The Colorado Public Utilities Commission (Commission) governs the process for appeals arising from local government permitting matters.

Local Transmission Siting Approval Process

8-CO-d.1 to 8-CO-d.2 – Notify Affected Local Governments

Developers are required to notify all local governments of plans to site a transmission facility within the jurisdiction of the local government. This notice must take place before the developer files a request for a Certificate of Public Convenience and Necessity (CPCN) from the Colorado Public Utilities Commission (Commission). After notifying the affected local governments, the developer must consult with the affected local governments to identify routes and locations considered for the siting of the transmission facility. Colo. Rev. Stat. § 29-20-108(4)(a).

8-CO-d.3 – Determine Local Government Permitting Requirements

Transmission facilities must comply with local government permitting requirements. Because Colorado has no centralized transmission siting authority, aside from the Commission with respect to the CPCN and appeals processes, developers must determine the requirements of all of the affected local governments. Local government permits may be in the form of a 1041 permit, a special use permit, a conditional use permit or other mechanism. For more information on specific local government permitting requirements see Report of the Task Force on Statewide Transmission Siting and Permitting.

8-CO-d.4 to 8-CO-d.6 – Is a Preliminary Application Required?

Some local governments will require the submission of a preliminary application for the permitting of a new transmission facility. If a preliminary application is required, the local government must take final action on the preliminary application within 120 days. If a local government does not require a preliminary application then the developer will file a final application with the local government. In this case, the local government must take final action on the application within 90 days. Colo. Rev. Stat. §. 29-20-108(2).

8-CO-d.7 to 8-CO-d.8 – Is the Application Complete?

The local government must notify the developer within 28 days of the submission of a preliminary application or final application (if a preliminary application is not required) of additional information to be supplied by the developer to complete the application. If additional information is required, the 90 or 120-day period for final local government action will start upon the submission of the additional information. Colo. Rev. Stat. § 29-20-108(2).

8-CO-d.9 to 8-CO-d.10 – Does Local Government Take Action Within the Applicable Time Frame?

If the local government does not take final action on a developer’s application in the prescribed time-frame, either 90 or 120 days depending on the application process, the application will be deemed approved. If the local government does not request additional information within the required 28 days, the 90 or 120-day period for final action by the local government will start on the date the developer submitted the application. Colo. Rev. Stat. § 29-20-108(2).

8-CO-d.11 to 8-CO-d.12 – Does Local Government Deny the Application?

Local government permitting is required for the construction of electrical transmission facilities. Construction cannot proceed if there is denial of a permit application. In some cases, the local government approves an application, but conditions that approval upon restrictions or requirements that the developer believes would unreasonably impair the ability of the utility to provide service.

8-CO-d.13 to 8-CO-d.14 – Does the Developer Seek an Appeal?

If the Commission denies an application, or places restrictions or requirements on the permit that the developer believes unreasonably impair the utility, the developer may appeal the local government ruling to the Commission when one or more of the following conditions exist:

  • The developer has applied for or has obtained a CPCN from the Commission;
  • A CPCN is not required for the facility; or
  • The Commission has issued an order relating to extensions or improvements to a transmission facility under Colo. Rev. Stat. § 40-4-102 which conflicts with a local government action. Colo. Rev. Stat. § 29-20-108(5)(a).

An application for appeal must include the following:

  • Background information;
  • A statement of reasons the utility believes the local government action would unreasonably impair its ability to provide safe, reliable, and economical service to the public;
  • The demonstrated need for the proposed project;
  • The extent to which the proposed project is inconsistent with applicable local or regional land use ordinances, resolutions, or master or comprehensive plans;
  • Systems planning and engineering information;
  • The merit of any reasonably available and economically feasible alternatives proposed by the utility or the local government;
  • The impact that the local government action would have on customers of the utility who reside within and outside of the boundaries of the jurisdiction of the local government;
  • The basis for the local government action (including a copy of the action if available);
  • The impact the proposed project would have on residents within the local government’s jurisdiction, including whether residents have already paid to place such facilities underground. If the residents have already paid to place the proposed facilities underground, the Commission will give strong consideration to that fact;
  • Information about public safety; and
  • An attestation that the utility will send a copy of the application to the local government body that took the action and that is the subject of the appeal application at the same time the appeal application is filed. Colo. Code Regs. tit. 4 § 723-3-3703.

8-CO-d.15 – Hold Pre-Hearing Conference

For the purposes of assisting the parties in scheduling the public hearing and the formal evidentiary hearing, the Commission will hold a pre-hearing conference within 15 days after receipt of a complete application. The Commission will decide the date and time of the public hearing after taking comments from the parties at the pre-hearing conference. Colo. Code Regs. tit. 4 § 723-3-3705.

8-CO-d.16 - Provide Notice of Public Hearing

The developer will be responsible for providing notice to the public of the hearing. Colo. Code Regs. tit. 4 § 723-3-3705.

8-CO-d.17 – Hold Public Hearing

The Commission takes statements from the public concerning the appealed local government action at an open hearing held at a location specified by the local government. Colo. Rev. Stat. §. 29-20-108(5)(b).

8-CO-d.18 to 8-CO-d.19 – Hold Evidentiary Hearing

The evidentiary hearing is a formal process in which the parties are “entitled to be heard, examine and cross-examine witnesses, and introduce evidence.” All parties may be heard either in person or through an attorney. After the hearing, the presiding official will transmit a recommended decision to the Commission and the parties. The parties may then file exceptions to the recommended decision within 20 days after service of the recommended decision upon the parties. Where exceptions are filed, the Commission will reconsider the matter and either adopt, reject, or modify the findings of the presiding official. Colo. Rev. Stat. § 40-6-109(1)-(4).

8-CO-d.20 to 8-CO-d.21 – Does Commission Reverse Local Government?

If the Commission reverses the ruling of the local government, then the state recognizes the permit authorization as granted.

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