Colorado Legislation to Improve Wildfire Resiliency Through Building Codes and Grants Will Impact Construction Industry

Snell & Wilmer

Snell & Wilmer

During the 2023 legislative session, Colorado passed eleven bills related to wildfire prevention and recovery. The Centennial State had its worst fire season in history in 2020 and is still recovering from the devastating Marshall Fire in Boulder just a year and a half ago. The Marshall Fire, which destroyed and/or damaged thousands of structures illustrates that wildfires are a concern not just for rural areas but are also a threat to more densely populated urban and suburban areas with significant fuel reserves (so-called “wildland-urban interface areas”). Parts of the new legislation will have a significant impact on the construction industry in Colorado and may lead to increased opportunities for builders in the future.

A New Statewide Building Code

Senate Bill 23-166 (“SB23-166”), signed by Colorado Governor Jared Polis on May 12, 2023, creates a 21-member Wildfire Resiliency Code Board (“Board”) within the state’s Department of Public Safety. This Board is tasked with creating new statewide building codes and standards to reduce the risks wildfires pose to people and property. The Board will be comprised of building code professionals, fire department personnel, builders, planners, hazard mitigation experts, and local government personnel, among other stakeholders. By statute, the members of the Board must be appointed by September 30, 2023. The Board must adopt these new building codes by July 1, 2025.

The Board must also establish geographic boundaries within the state to determine areas of particular risk, including defining the boundaries of critical wildland-urban interface areas, which are particularly at risk. The primary task of the Board is to adopt minimum statewide building codes and standards for new construction and “substantial remodels.” Substantial remodels, as defined in SB23-166, include adding five hundred square feet or more to a structure’s footprint, the addition of a wooden deck to a structure, or any alteration or repair of the exterior of a structure if twenty-five percent or more of the structure is affected by the alteration or repair.

The Board also has the power to enforce the application and adoption of the new minimum codes and standards. The Board’s strongest enforcement powers are limited to governing bodies with jurisdiction in a wildland-urban interface area. Local governments that have jurisdiction in one of these areas must adopt a code that meets or exceeds the standards that the Board adopts within three months of the Board’s adoption. Local governments may petition the Board for a modification of the codes and standards within their jurisdictions, if necessary.

Added Benefit: Unlocking More Grant Funded Projects

One reason why the Colorado legislature passed SB23-166 was to increase local access to federal grant funding. In the state Department of Public Safety’s budget brief to the legislature for the 2022-2023 fiscal year, the Department noted that Colorado lost out on potentially 100 million dollars in federal grant funding because of the lack of a statewide minimum building code. The Federal Emergency Management Agency’s (“FEMA”) Building and Resilient Infrastructure and Communities (BRIC) grants provided only two million dollars to Colorado state projects in 2022. FEMA has explicitly stated that it prefers to give awards to states that have statewide minimum building standards.

BRIC grants require a certain level of matched funding from state governments, so Colorado’s legislators responded with another bill, House Bill 23-1273 which increases state funding for grants for homeowners to retrofit their residences to be more resilient to wildfires. By allocating these funds, the legislature hopes that these state grants result in more matched funds from FEMA’s BRIC program. The Department of Public Safety’s budget report appears optimistic about the state’s chances to acquire significantly more BRIC funding if Colorado adopts a statewide minimum building code and increases its own grant funding for wildfire resiliency and mitigation projects.

While the BRIC grants can support a variety of wildfire resilience projects besides construction and remodeling, infusions of federal funding may create opportunities for Colorado construction professionals, including opportunities to work on a significant number of new mitigation projects.

Although the impact of SB23-166 (and HB23-1273) remains to be seen in Colorado’s construction industry, client awareness of these developing changes to the state’s building codes and standards for new construction and substantial remodels, particularly in areas deemed “wildland-urban interface areas” is critical.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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