2023 Colorado Revised Statutes › Title 40 - UTILITIES (§§ 40-1-101 — 40-43-104) › PUBLIC UTILITIES (§§ 40-1-101 — 40-17.5-105) › GENERAL AND ADMINISTRATIVE (§§ 40-1-101 — 40-9.8-104) › Article 5 - NEW CONSTRUCTION - EXTENSION (§§ 40-5-101 — 40-5-108) › Section 40-5-101 - New construction - extension - compliance with local zoning rules

(1)
(a)
A public utility shall not begin the construction of a new facility, plant, or system or the extension of its facility, plant, or system without first obtaining from the commission a certificate that the present or future public convenience and necessity require, or will require, the construction or extension. For purposes of this subsection (1), the present or future public convenience and necessity does not include the consideration of land use rights or siting issues related to the location or alignment of the proposed electric transmission lines or associated facilities, which issues are under the jurisdiction of a local government's land use regulation. Sections
40-5-101
to
40-5-104
do not require a corporation to secure a certificate for the following:
(I)
An extension within any city and county, city, or town within which it has already lawfully commenced operations;
(II)
An extension into territory, either within or outside of a city and county, city, or town, contiguous to its facility, line, plant, or system and not already served by a public utility providing the same commodity or service; or
(III)
An extension within or to territory already served by the corporation, as is necessary in the ordinary course of its business.
(b)
If a public utility, in constructing or extending its line, plant, or system, interferes, or is about to interfere, with the operation of the line, plant, or system of any other public utility already constructed, the commission, upon complaint of the public utility claiming to be injuriously affected, after hearing, may prohibit the construction or extension or prescribe just and reasonable terms and conditions for the location of the lines, plants, or systems affected.
(2)
Whenever the commission, after a hearing upon its own motion or upon complaint, finds that there is or will be a duplication of service by public utilities in any area, the commission may issue a certificate of public convenience and necessity assigning specific territories to one or to each of said utilities or, by certificate of public convenience and necessity, otherwise define the conditions of rendering service and constructing extensions within those territories and may order the elimination of the duplication upon such terms as are just and reasonable, having due regard to due process of law and to all the rights of the respective parties and to public convenience and necessity.
(3)
Except as otherwise provided in section
29-20-108
, C.R.S., a public utility shall 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. Nothing in this subsection (3) prohibits a local government from granting a variance from its zoning rules, resolutions, or ordinances for such uses of the property. Nothing in this subsection (3) grants the commission any additional authority to restrict a siting application. For purposes of this section, "local government" means a county, home rule or statutory city, town, territorial charter city, or city and county. Nothing in this subsection (3) restricts the right of a public utility or power authority to appeal to the public utilities commission a local government action under section
29-20-108
, C.R.S.
(4)
(a)
A public utility is entitled to recover, through a separate rate adjustment clause, the costs that it prudently incurs in planning, developing, and completing the construction or expansion of transmission facilities for which the utility has been granted a certificate of public convenience and necessity, or for which the commission has determined that no certificate of public convenience and necessity is required. The transmission rate adjustment clause is subject to annual changes, which are effective on January 1 of each year.
(b)
To provide additional encouragement to utilities to pursue the construction and expansion of transmission facilities, the commission shall approve current recovery by the utility through the annual rate adjustment clause of the utility's weighted average cost of capital, including its most recently authorized rate of return on equity, on the total balance of construction work in progress related to such transmission facilities as of the end of the immediately preceding year. The rate adjustment clause shall be reduced to the extent that the prudently incurred costs being recovered through the adjustment clause have been included in the public utility's base rates as a result of the commission's final order in a rate case.
L. 13: p. 481, § 35. L. 17: p. 418, § 1. C.L. § 2946. CSA: C. 137, § 36. CRS 53: § 115-5-1. L. 61: p. 628, § 2. C.R.S. 1963: § 115-5-1. L. 2005: (3) added, p. 1355, § 1, effective August 8. L. 2007: (4) added, p. 267, § 3, effective March 27. L. 2012: Entire section amended, (HB 12-1312), ch. 101, p. 339, § 2, effective April 12.
(1) For the acquisition of public utilities by cities and towns, see § 40-5-104 . (2) For the legislative declaration contained in the 2007 act enacting subsection (4), see section 1 of chapter 61, Session Laws of Colorado 2007. For the legislative declaration in the 2012 act amending this section, see section 1 of chapter 101, Session Laws of Colorado 2012.