After months of backlash over Xcel Energy’s use of eminent domain in eastern Colorado, lawmakers representing Elbert and El Paso counties are advancing legislation that would bar utilities from initiating property takings until they’ve secured state approval and all required local permits — a move supporters say will restore fairness and prevent landowners from being forced into legal limbo.

House Bill 1278, sponsored by Rep. Chris Richardson, R-Elizabeth, and Sens. Marc Snyder, D-Colorado Springs, and Rod Pelton, R-Cheyenne Wells, would require utilities to receive a certificate of public convenience and necessity from the Public Utilities Commission, as well as all necessary local land use approvals and permits, before initiating eminent domain proceedings.

In 2021, Xcel announced plans for “Colorado’s Power Pathway,” a $1.7 billion, 550-mile high-voltage transmission project that would connect the Eastern Plains to the Denver Metro Area. Ground officially broke on the project in the summer of 2023, with final segments expected to be completed in 2027.

Last July, commissioners in both Elbert and El Paso counties denied Xcel’s permit applications to build nearly 100 miles of high-voltage transmission towers. According to Elbert County, the applications failed to meet approval criteria.

In August, Xcel sued Elbert County in district court, seeking to overturn the denial. The company alleges that Elbert County imposed unconstitutional conditions, exceeded its authority regarding impact fees, and improperly precluded state authority.

Xcel has also filed an appeal with the PUC, with a decision expected by mid-April. The district court ruling will follow.

In October, Xcel filed eminent domain proceedings against more than a dozen property owners in Elbert County. County residents saw it as the company’s last-ditch effort to secure what it wanted after commissioners denied its permit applications.

Kerry Jibits of the Elbert County Environmental Alliance, a community group established a few years ago in opposition to the Power Pathway project, said it’s not the project itself that’s causing concerns among residents, it’s the location.

Xcel’s route passes through over a dozen properties in Elbert County, as well as the Bijou Basin, a local open space home to several protected species.

“We don’t have a lot of forest land here, but they’ll be cutting a 150-foot wide swath through our forest for their easement, which is part of the animals’ habitat and is also what makes this area so beautiful, so we don’t want to lose that,” Jibits said. “We’re just trying to do what we can to ask Xcel to move the route for their line so that it’s not going through an area that is as highly impacted.”

Homeowners are also concerned about property values, which could decrease by as much as 50% if the lines are built on or near a property.

Xcel is not Elbert County’s utilities provider.

“There is no benefit for Elbert County; all of the power being produced is going to the metro area,” Jibits said. “Elbert County gets none of it, yet we are the ones who have to deal with having it here.”

‘You haven’t even gotten approved yet, but you’re taking my property’

Richardson said he first found out about the Power Pathway as an Elbert County commissioner. While he and other community members initially believed Xcel wouldn’t be able to use eminent domain until they received a certificate of public convenience and necessity from the PUC, which authorizes a utility to take private property via eminent domain. However, they were mistaken.

“It doesn’t make sense that you should have the authority to start this process before there’s an articulation of need,” he said.

To make matters more frustrating for Elbert County residents, it turns out Xcel had initiated eminent domain proceedings before commissioners had even held a hearing on their land use application.

After that, attitudes toward the utility company soured further.

“I think using the authority to start the process early hardens opposition, because people know that you haven’t even gotten approved yet, but you’re taking my property.”

While other utilities have worked on projects in Elbert County and had cordial relationships with the community in the past, Richardson Xcel seemed to take a different approach, which residents didn’t appreciate.

“It was much more direct in telling people that this is happening, we have the authorities to do this,” he said. “It was a different attitude from the developer, and disappointingly so.”

While Richardson, Snyder, and Pelton’s bill is not retroactive, advocates are hopeful it will prevent future incidents like what happened in Elbert County.

“It’s my hope that this bill would protect landowners in the future so that they don’t find themselves in this limbo that Elbert County landowners are finding themselves in,” said Jibits. “I would hope that it would send a message to corporations that we matter out here; Colorado is not just theirs for the taking.”

House Bill 1278 is scheduled to be heard by the House Energy and Environment Committee on March 5.