BASIS, PURPOSE AND STATUTORY AUTHORITY.

The basis and purpose of these rules is to establish procedures governing appeals brought by a public utility or power authority to the Public Utilities Commission under § 29-20-108, C.R.S. It is intended that these rules will promote the balancing of determinations made by local governments that are exercising reasonable constitutional police and licensing powers with respect to local land use concerns with the broader statewide interest in the locations, construction and improvement of major electrical and natural gas facilities. These rules are issued pursuant to 40-2-108, C.R.S. TABLE OF CONTENTS BASIS, PURPOSE AND STATUTORY AUTHORITY.

RULE (4 CCR) 723-32-1 APPLICABILITY.

RULE (4 CCR) 723-32-2 DEFINITIONS.

RULE (4 CCR) 723-32-3 COMPLETENESS OF APPLICATION.

RULE (4 CCR) 723-32-4 PUBLIC HEARING.

RULE (4 CCR) 723-32-5 SCHEDULING CONFERENCE.

RULE (4 CCR) 723-32-6 DENIAL OF APPEAL.

RULE (4 CCR) 723-32-7 ROCEDURAL RULES RULE (4 CCR) 723-32-8 VARIANCE AND WAIVER.

RULE (4 CCR) 723-32-1 APPLICABILITY.

These rules are applicable to all public utilities or power authorities. In order for a public utility or power authority to appeal a local government action to the Commission under this rule, according to 29-20- 108(5)(a), C.R.S., one or more of the following conditions must be met: 723-32-1.1 The public utility or power authority has applied for or has obtained a certificate of public convenience and necessity from the Commission pursuant to 40-5-101, C.R.S., to construct the major electrical or natural gas facility that is the subject of the local government action;

723-32-1.2 A certificate of public convenience and necessity is not required for the public utility or power authority to construct the major electrical or natural gas facility that is the subject of the local government action;

723-32-1.3 The Commission has previously entered an order pursuant to 40-4-102, C.R.S., that conflicts with the local government action.

RULE (4 CCR) 723-32-2 DEFINITIONS.

The meaning of terms used in these rules shall be consistent with their general usage in the electric and natural gas industry unless specifically defined by Colorado statute or this rule. In addition to the definitions in this section, any applicable statutory definitions apply. In the event the general usage of terms in the electric and natural gas industry or the definitions in this rule conflict with the statutory definitions, the statutory definitions control. As used in these rules, unless the context indicates otherwise, the following definitions apply:

723-32-2.1 Commission. The terra “Commission” as used in these rules means the Public Utilities Commission of the State of Colorado.

723-32-2.2 Electric Utility. The term “Electric Utility” as used in these rules means any person, partnership, cooperative electric association, non-profit electric corporation or association, firm, corporation, whether privately owned or otherwise, when subject to the jurisdiction of this Commission, their lessees, trustees or receivers appointed by any court whatsoever that may now or hereafter be engaged as a public utility in the business of furnishing electricity to domestic, commercial or industrial customers in the State of Colorado. 723-32-2.3 Local government. The term “Local Government” as used in these rules means a county, home rule or statutory city, town, territorial charter city, or city and county. 723-32-2.4 Local government action. The term “Local government action” as used in these rules means any decision, in whole or in part, by a local government which has the effect or result of denying 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 a decision imposing 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.

723-32-2.5 Local land use decision. The term “Local land use decision” as used in these rules means the decision of a local government within its jurisdiction to plan for and regulate the use of land.

723-32-2.6 Major electrical or natural gas facility. The term “Major electrical or natural gas facility” as used in these rules shall have that meaning set forth in 29-20-108, C.R.S., or in any other applicable statute.

723-32-2.7 Natural gas utility. The term “Natural Gas Utility” as used in these rules means any person, partnership, cooperative association, non-profit corporation or association, firm, corporation, whether privately owned or otherwise, when subject to the jurisdiction of this Commission, their lessees, trustees or receivers appointed by any court whatsoever that may now or hereafter be engaged as a public utility in the business of furnishing gas to domestic, commercial or industrial customers in the State of Colorado. 723-32-2.8 Power authority. The term “Power Authority” as used in these rules means an authority created pursuant to 29-1-204, C.R.S.

723-32-2.9 Public utility. The term “Public Utility” as used in these rules means either an electric utility or natural gas utility as defined within this section, or as defined by 40-1-103, C.R.S. RULE (4 CCR) 723-32-3 COMPLETENESS OF APPLICATION.

723-32-3.1 In accordance with 29-20-108(5) (c) and 29-20-108 (5) (d), all applications filed with the Commission pursuant to this rule shall include the following information: 723-32-3.1.1 A statement of the reasons 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;

723-32-3.1.2 The demonstrated need for the major electrical or natural gas facility; 723-32-3.1.3 The extent to which the proposed facility is inconsistent with existing applicable local or regional land use ordinances, resolutions, or master or comprehensive plans; 723-32-3.1.4 Whether the proposed facility would exacerbate a natural hazard; 723-32-3.1.5 Applicable utility engineering standards, including supply adequacy, system reliability, and public safety standards;

723-32-3.1.6 The relative merit of any reasonably available and economically feasible alternatives proposed by the public utility, the power authority, or the local government; 723-32-3.1.7 The impact that the local government action would have on the customers of the public utility or power authority who reside within and without the boundaries of the jurisdiction of the local government;

723-32-3.1.8 The basis for the local government's decision to deny the application or impose additional conditions to the application;

723-32-3.1.9 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 723-32-3.1.10 Information concerning how the proposed major electrical or natural gas facilities will affect the safety of residents within and without the boundaries of the jurisdiction of the local government.

723-32-3.2 Any application that fails to provide all of the information required in sections 723-32-3.2 through 723-32-3.11, shall be deemed incomplete by the Commission in accordance with 4 CCR 723-1- 70.

RULE (4 CCR) 723-32-4 PUBLIC HEARING.

In accordance with $29-20-108(5) (b), C.R.S., in addition to the formal evidentiary hearing on the appeal, 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. RULE (4 CCR) 723-32-5 . SCHEDULING CONFERENCE.

723-32-5.1 In order to assist the parties in scheduling the open hearing, determining the scheduling of the evidentiary hearing, and developing the list of persons to receive notice of these hearings, the Commission will require a scheduling conference.

723-32-5.2 The public utility or power authority filing an appeal under this rule shall file a motion requesting that the Commission conduct a scheduling conference within 30 days after the application is deemed complete by the Commission in accordance with 4 CCR 723-32-3. 723-32-5.3 The local government shall be joined as an indispensable party by the Commission. 723-32-5.4 Ten days before the commencement of the scheduling conference, the local government shall submit to the parties and the Commission its preference for the location of the open hearing in accordance with 29-20-108(5) (b), C.R.S.

723-32-5.5 The Commission will decide the date and time of the open hearing after receiving comments from the parties at the scheduling conference.

723-32-5.6 By the date of the scheduling conference, each party shall provide to the utility a list of individuals and groups to receive notice of the open hearing. 723-32-5.7 The utility will be required to give notice to all the individuals and groups in a manner specified by the Commission. Notice may be accomplished by newspaper publication, bill insert, first class mail, or any other manner deemed appropriate by the Commission. 723-32-5.8 If the local government is unable to provide meeting space for the open hearing, and space needs to be acquired, the utility shall bear any cost associated with the rental of such space for the open hearing.

723-32-5.9 The parties are encouraged to confer prior to the scheduling conference to develop a schedule for the filing of testimony and the dates for the formal evidentiary hearing. RULE (4 CCR) 723-32-6 DENIAL OF APPEAL.

723-32-6.1 In accordance with 29-20-108 (5) (e), C.R.S., the Commission shall deny any appeal brought under this rule unless the public utility or power authority has complied with the following notification and consultation requirements:

723-32-6.1.1 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 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 title 40, article 5, C.R.S., or file annually with the Commission to notify the Commission of the proposed construction of a new facility or the extension of an existing facility, 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. 723-53-6.2 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.

RULE (4 CCR) 723-32-7 PROCEDURAL RULES Pursuant to 29-20-108 (5) (b), C.R.S. any appeal brought by a public utility or power authority to the Commission under this section shall be conducted in accordance with the procedural requirements of Article 6 of Title 40 of the Colorado Revised Statutes, including 40-6-109.5, C.R.S. Evidentiary hearings on any such appeals shall be conducted in accordance with 40-6-109. RULE (4 CCR) 723-32-8 VARIANCE AND WAIVER.

The Commission may permit variance or waiver from these Rules, if not contrary to law, for good cause shown if it finds that compliance is impossible, impracticable or unreasonable.