Boulder is asking the Colorado Public Utilities Commission to reconsider an "overly broad" ruling issued last month governing its potential acquisition of Xcel Energy infrastructure, saying the city, not the PUC, has the right to decide which of the utility's assets it will obtain through condemnation.
City officials, who filed an application for re-hearing late Monday afternoon, argued that the PUC "transcended the questions it was asked to consider and issued an overly broad ruling that overlooked the powers granted to the city by the Constitution."
In its Oct. 29 decision, the PUC ruled that should Boulder seek to condemn Xcel substations in unincorporated Boulder County and serve nearby residents who live outside the city limits, it will have to show that the utility company is unable or unwilling to serve those customers.
"The argument that the city makes today is that there are constitutional and statutory provisions that make it clear that the city gets to decide what assets it can acquire," Boulder spokeswoman Sarah Huntley said.
At the time, Xcel Energy characterized last month's ruling as a victory, saying the company was "willing and able to serve this area, and Boulder will not be able to prove otherwise."
On Monday, Xcel spokeswoman Michelle Aguayo said the city's request to the PUC was not unexpected.
"This isn't a surprise that they would do this and we knew that would be a possibility. We know that the city has a number of options," Aguayo said. "We'll find out what they filed and we have an opportunity to respond."
Boulder officials initially called the PUC's ruling an affirmation of Boulder's right to form a municipal utility.
Senior Assistant City Attorney Deb Kalish noted Monday that "Boulder has no objection to, and, in fact, is eager to work with commission staff to prepare the various plans necessary to make Boulder's acquisition of the Public Service (Xcel) system that serves Boulder as cost-effective as possible, and to ensure that the electric system, both inside and outside of Boulder, is at least as safe and reliable as the current Public Service system."
Yet city officials now say the PUC's decision, should it stand, would both delay Boulder's ability to municipalize and force it to make acquisition decisions prematurely and without adequate information.
Once the city files for condemnation, both sides will be required to enter a good-faith negotiation in which they would exchange any information that might be useful in proceeding toward municipalization.
Huntley, the city spokeswoman, said Xcel has not shared any requested information so far. Without that, she said, Boulder officials can't know what infrastructure they might want to acquire -- yet the PUC's Oct. 29 ruling would force a decision before the actual condemnation proceedings begin.
"Xcel has not been cooperative with our requests for information," Huntley said. "It's the city's position that we've shared a great deal of information with them and, of course, the public."
The Boulder City Council has authorized city staff to prepare for condemnation, but the city does not expect to file until at least January, if not later.