5 CCR 1001-32-A - Applicability and General Provisions

I. Purpose

I.A. This regulation establishes energy-use benchmarking data reporting and building performance requirements for owners of existing and new covered buildings in order to meet greenhouse-gas emission reductions goals for such buildings under 25-7-142(8)(a)(II)(A)-(B), C.R.S. (2022).

II. Applicability

II.A. This regulation applies to owners of covered buildings, as defined in Section IlI.O.

II.B. The owner of a public building must only comply with the building performance standards in Part C for that covered building upon completion of any construction or renovation project that has an estimated cost of at least $500,000 and impacts at least twenty-five percent (25%) of the covered building's square footage, excluding upgrades such as painting, flooring, or tenant finishes that do not impact energy use.

III. Definitions

III.A. "Affordable housing" means

(I) for a household residing in housing on a rental basis, annual income of the household is at or below eighty percent of the area median income of households of that size in the county in which the housing is located;

(II) for a household residing in housing on a home ownership basis, annual income of the household is at or below one hundred forty percent of the area median income of households of that size in the county in which the housing is located; or

(III) housing that incorporates mixed-income development.

III.B. "Aggregated data" means electric or gas utility customer data, alone or in combination with non-customer data, resulting from processing (e.g., average of a group of customers) and/or the compilation of customer data of one or more customers from which all unique identifiers and personal information has been removed.

III.C. "Aggregation threshold" means, for each qualifying utility, the minimum number of customer accounts associated with a covered building for which the qualifying utility may provide the owner of the covered building with aggregated data upon request without requiring each customer's consent to have the customer's energy-use data accessed or shared.

III.D. "Agricultural purpose" means a building or structure used to house farm implements, hay, unprocessed grain, poultry, livestock, or other agricultural products. For the purpose of this definition, this building or structure must not contain habitable space or a place of employment where agricultural products are processed or treated or packaged; nor is it a place used by the public. The gross floor area of a building or structure used for an agricultural purpose must include all space within the building or structure to determine if the building or structure meets the covered building exemption Section III.O.2.

III.E. "Agricultural product" means any agricultural, horticultural, viticultural, or vegetable products or poultry or poultry products grown or produced in Colorado. Agricultural products do not include "regulated marijuana" as defined by Colorado's Marijuana Enforcement Division in 1 CCR 212-3.

III.F. "Benchmarking" means to input benchmarking data into a benchmarking tool to measure and assess the energy performance and greenhouse gas pollution for a covered building for the reporting year.

III.G. "Benchmarking data" means the information related to a covered building that is input into or calculated by a benchmarking tool.

III.H. "Benchmarking tool" means the ENERGY STAR® Portfolio Manager or a successor online resource used to track and assess the performance of certain properties relative to similar properties.

III.I. "Beneficial electrification" means converting the energy source of a customer's end use from a nonelectric fuel source to a high-efficiency electric source, or avoiding the use of nonelectric fuel sources in new construction or industrial applications, if the result of the conversion or avoidance is to

III.I.1. Reduce net greenhouse gas emissions over the lifetime of the conversion or avoidance; and

III.I.2. Reduce societal costs or provide for more efficient utilization of grid resources.

III.I.3. Beneficial electrification does not include

III.I.3.a. Retail distributed generation; or

III.I.3.b. A renewable energy storage system.

III.J. "Biomedical research laboratory" means a scientific laboratory used to conduct research relating to both biology and medicine.

III.K. "Building owner" means a person possessing title to a building or property or the person's designated agent.

III.L. "Building performance standards" (BPS) means standards a covered building must meet to achieve the greenhouse gas reduction requirements under 25-7-142(8)(a)(II), C.R.S. (2022).

III.M. "Campus" means a collection of two or more buildings that are owned and operated by the same person and that have a shared purpose and function as a single property. Campus includes two or more of the buildings that comprise the capitol complex.

III.N. "CEO" means the Colorado Energy Office.

III.O. "Covered building" means a building comprising a gross floor area of fifty thousand (50,000) square feet or more that is occupied by a single occupant or a group of tenants. Covered building does not include

III.O.1. Covered buildings that are a storage facility, stand-alone parking garage, or an airplane hangar that lacks heating and cooling;

III.O.2. A building in which more than half of the gross floor area is used for manufacturing, industrial, or agricultural purposes as defined in Section III.; or

III.O.3. A single-family home, duplex, or triplex.

III.P. "Customer-owned retail distributed generation system" means retail distributed generation or a renewable energy storage system owned or controlled by a covered building owner.

III.Q. "Data center" means buildings specifically designed and equipped to meet the needs of high density computing equipment, such as server racks, used for data storage and processing. Gross floor area of data centers should include all space within the building(s) including raised floor computing space, server rack aisles, storage silos, control console areas, battery rooms, mechanical rooms for cooling equipment, administrative office areas, elevator shafts, stairways, break rooms and restrooms. When a data center is located within a larger building, the gross floor area of the data center should include only the spaces that are uniquely associated with the data center (e.g., not include spaces shared by the data center and other tenants, such as break rooms or hallways) in the building.

III.R. "Demand flexibility" means the use of communication and control technology to shift electricity use across hours of the day while delivering end-use services (e.g., air conditioning, domestic hot water, electric vehicle charging) at the same or better quality but lower cost. It does this by applying automatic control to reshape a customer's demand profile continuously in ways that either are invisible to or minimally affect the customer, and by leveraging more-granular rate structures that monetize demand flexibility's capability to reduce costs for both customers and the grid.

III.S. "Duplex" means a multi-family dwelling that has two separate residential units within one standalone building with the two units sharing a common wall or ceiling/floor and each having its own entrance.

III.T. "ENERGY STAR" means the federal program authorized by 42 U.S.C. § 6294a (2007), as amended, to help customers, businesses, and industry save money and protect the environment through the adoption of energy-efficient products and practices.

III.U. "ENERGY STAR score" means the one-to-one-hundred numeric rating generated by the ENERGY STAR Portfolio Manager as a measurement of a building's energy efficiency.

III.V. "ENERGY STAR Portfolio Manager" means the resource management tool that enables building owners to track and benchmark energy in a building, or across multiple buildings, through an online platform used to measure their performance.

III.W. "Energy-use intensity" (EUI) means a building's energy use, expressed as total site energy use per square foot per year.

III.X. "Financial hardship" means a property is experiencing at least one of the following conditions.

III.X.1. The property has been included on a city's, county's, or city and county's annual tax lien sale list within the previous two years.

III.X.2. The property is an asset subject to a court-appointed receiver that controls the asset due to financial stress.

III.X.3. The property is owned by a financial institution as a result of a default by a borrower.

III.X.4. The property has been acquired by a deed in lieu of foreclosure.

III.X.5. The property is the subject of a senior mortgage subject to a notice of default.

III.X.6. Due to the governor declaring a disaster emergency pursuant to § 24-33.5-704 (4), C.R.S. (2022), the property, in at least two of the previous five years, generated annual rental income or revenue that totals sixty percent or less of the five-year average immediately preceding the disaster.

III.Y. "Greenhouse gas" (GHG) means carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), sulfur hexafluoride (SF6), and nitrogen trifluoride (NF3).

III.Z. "Gross floor area" (GFA) means the total building area, as measured from the outside surface of each exterior wall of the building, including above-grade and below-grade space.

III.AA. "High-efficiency electric equipment" means electrical equipment that is, for example, certified according to ENERGY STAR, or meets the minimum efficiency requirements of the current version of American Society of Heating, Refrigerating and Air-Conditioning Engineers' (ASHRAE) Standard 90.1, 2021 International Energy Conservation Code (IECC), the Federal Energy Management Program (FEMP) efficiency requirements, or newer requirements where applicable.

III.BB. "Industrial purpose" means a building or structure used for industrial operations including, but not limited to, factories, mills, shops, processing plants, assembly plants, fabricating plants, research or development facilities, operations by energy producers, electric generation unit, refineries, meat packing plants, dairies, steel mills, cement plants, mining operations, airline operations, wastewater treatment plants, landfills, and abandoned coal mines. The gross floor area of a building or structure used for industrial operations must include all space within the building(s) at the building or structure including production or industrial operation areas, offices, conference rooms, employee break rooms, storage areas, mechanical rooms, stairways, and elevator shafts to determine if the building or structure meets the covered building exemption Section III.O.2.

III.CC. "Manufacturing purpose" means a building or structure that includes a main production area containing machinery and equipment used for producing products. The gross floor area of a building or structure used for producing products must include all space within the building(s) at the building or structure, including production areas, offices, conference rooms, employee break rooms, storage areas, mechanical rooms, stairways, and elevator shafts to determine if the building or structure meets the covered building exemption Section III.O.2. For purposes of the exemption in Section III.O.2., manufacturing purposes does not include marijuana cultivation facilities, as defined by Colorado's Marijuana Enforcement Division in 1 CCR 212-3.

III.DD. "Mixed use building" means a building that contains multiple property types where there is not one single use type that represents 50% or more of the building or property's gross floor area, including parking gross floor area.

III.EE. "Multifamily housing" means any property used or intended to be used as a residence and that contains four or more dwelling units. Multifamily housing includes a condominium or cooperative.

III.FF. "Parking" means buildings and lots used for parking vehicles. This includes open parking lots, partially enclosed parking structures, and completely enclosed (or underground) parking structures. Parking garages may be free standing or physically connected to the property.

III.GG. "Power purchase agreement" (PPA) means an agreement executed between a covered building owner and the owner of a renewable energy resource or renewable energy storage system where the energy or share of energy produced from the renewable energy resource or renewable energy storage system is dedicated to serving the covered building. For purposes of this rule, a utility cannot be the owner of the renewable energy resource or renewable energy storage system.

III.HH. "Power usage effectiveness" (PUE) means a measure of how much energy is consumed by the power supply and cooling systems in a Data Center relative to the amount of energy delivered directly to the IT equipment. PUE is equal to the total energy consumption of a Data Center (for all fuels) divided by the energy consumption used for the IT equipment.

III.II. "Property type" means the primary use of a building. Each property type will have a different set of property use details, which refer to the business activity at the property, such as weekly operating hours, number of workers, and number of computers. If a building or property has multiple uses, for purposes of benchmarking the property type is based on the use that accounts for more than 50% of a building's or property's gross floor area. As referenced in the definition of mixed use building in Part A, Section III.DD., if there is not one single use type that represents 50% or more of the building or property's gross floor area, the property type will be classified as "mixed use."

III.JJ. "Public building" means a covered building owned by: the state; a local government; a district or special district regulated under title 32; a state institution of higher education; a private institution of higher education as defined in § 23-18-102 (9), C.R.S. (2022); a school district created pursuant to article 30 of title 22; and a charter school authorized pursuant to Part 1 of Article 30.5 of Title 22 of the C.R.S. (2022).

III.KK. "Qualifying utility" means an electric or gas utility with five thousand or more active commercial and industrial service connections, accounts, or customers in Colorado, including: an investor-owned electric or gas utility; a cooperative electric association; or a municipally owned electric or gas utility. Qualifying utility also means a natural gas supplier with five or more active commercial or industrial connections, accounts, or customers in Colorado.

III.LL. "Renewable energy credit" (REC) means a contractual right to the full set of non-energy attributes, including any and all credits, benefits, emissions reductions, offsets, and allowances, howsoever entitled, directly attributable to a specific amount of electric energy generated from a renewable energy resource. One REC results from one megawatt hour (MWh) of electric energy generated from a renewable energy resource.

III.MM. "Renewable energy" means useful electrical, thermal, or mechanical energy converted directly or indirectly from resources of continuous energy flow or that are perpetually replenished and whose utilization is sustainable indefinitely. The term includes, without limitation, sunlight, the wind, geothermal energy, hydrodynamic forces, and organic matter available on a renewable basis such as forest residues, agricultural crops and wastes, wood and wood wastes, animal wastes, livestock operation residue, aquatic plants, and municipal wastes.

III.NN. "Renewable energy resource" means solar, wind, geothermal, biomass that is greenhouse gas neutral, new hydroelectricity with a nameplate rating of ten megawatts or less, and hydroelectricity in existence on January 1, 2005, with a nameplate rating of thirty megawatts or less and that does not require the construction of any new dams or reservoirs. A biomass electric generation facility that was in existence on or before January 1, 2021, or that has a nameplate rating of ten megawatts or less, is a renewable energy resource.

III.OO. "Renewable energy storage system" means any commercially available system, including batteries and batteries paired with on-site generation, that is capable of retaining, storing, and delivering energy by chemical, thermal, mechanical, or other means.

III.PP. "Renovation" means the repair, remodeling, restoration, and preservation of a covered building and any associated fixtures or improvements.

III.QQ. "Retail distributed generation" means a renewable energy resource or renewable energy storage that is located on any property owned or leased by any customer within the service territory of the qualifying retail utility and is interconnected on the customer's side of the utility meter. Retail distributed generation must provide electric energy primarily to serve the applicable covered building's loads and must be sized to supply no more than two hundred percent of the reasonably expected average annual total consumption of electricity at all properties owned or leased by the customer within the utility's service territory. Retail distributed generation also includes retail distributed generation resources provided to a covered building owner through a power purchase agreement or a community solar garden subscription. Retail distributed generation does not include utility-owned renewable electric generation.

III.RR. "Single-family home" means a standalone residential building designed to be used as a single-dwelling unit with one owner and no shared walls with another residence.

III.SS. "Site energy-use intensity" or "Site EUI" means the annual amount of all the energy the building consumes on-site, regardless of the source. A building's site EUI is calculated by dividing the total energy consumed by the building in one year (measured in kBtu) by the total gross floor area of the building.

III.TT. "Source energy-use intensity" or "Source EUI" means EUI calculations that consider the total amount of energy required for the building, including the energy used to produce and transmit any energy that comes from offsite.

III.UU. "State institution of higher education" means an institution as defined in § 23-1-108(7)(g)(II), CRS, (2022) and the Auraria Higher Education Center, governed pursuant to Article 70 of Title 23 of C.R.S. (2022). State institution of higher education does not include biomedical research laboratories.

III.VV. "Triplex" means a multi-family dwelling that has three separate residential units within one standalone building with the units sharing one or two common walls or ceiling/floors and each having its own entrance.

III.WW. "Under-resourced building" means a building with limited access to resources, including revenues, funding, grants, or gifts that can help with building operations or to comply with the requirements of this rule, than other buildings within the same building type in the same utility service territory. Under-resourced buildings include, but are not limited to

III.WW.1. Buildings owned by organizations that qualify at tax exempt under Section 501(c) of the Internal Review Code.

III.WW.2. Affordable housing.

III.WW.3. Buildings that are owned by an organization that provides human services that are regulated by the Colorado Department of Human Services, if those services are also provided in the building.

III.WW.4. Restricted income providers.

III.XX. "Unoccupied" means a building without occupants or tenants other than security, maintenance staff, or construction workers during a construction or renovation project.

III.YY. "Weather-normalized" means a method for modifying the measured building energy use in a specific weather year to energy use under normal weather conditions.

IV. Annual fee

IV.A. Except as provided in Section IV.B., covered building owners must pay an annual fee, by June 1 of every reporting year, to the CEO of $100 per covered building.

IV.B. Owners of public covered buildings are exempt from the payment of the annual fee.

V. Severability

If any section, clause, phrase, or standard contained in these regulations is for any reason held to be inoperative, unconstitutional, void, or invalid, the validity of the remaining portions thereof will not be affected and the Commission declares that it severally passed and adopted these provisions separately and apart.

Notes

5 CCR 1001-32-A

46 CR 18, September 25, 2023, effective 10/15/2023