Changes to Existing Law

26.558.16 26.558.17 101st Legislative Session 36 2026 South Dakota Legislature Senate Bill 36 SENATE COMMERCE AND ENERGY ENGROSSED Introduced by: Senator Kolbeck (Steve) Underscores indicate new language. Overstrikes indicate deleted language. An Act to authorize utilities to establish wildfire mitigation plans and associated 1 liability limitations for wildfire damages. 2 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA: 3 Section 1. That a NEW SECTION be added to a NEW CHAPTER in title 49: 4 Terms used in this chapter mean: 5 (1) "Approval authority," in the case of an electric cooperative, its board of directors, 6 or in the case of a municipal utility, its city council or city commission, as the case 7 may be; 8 (2) "Commission," the Public Utilities Commission of the State of South Dakota; 9 (3) "Economic loss," monetary loss, including losses resulting from medical expenses, 10 business interruption, loss of business, loss of use of property, and loss due to 11 death and burial costs; 12 (4) "Qualified utility," includes: 13 (a) Any electric utility defined in subdivision 49-34A-1(7); and 14 (b) Any person who is a wholesale generator of electricity and who operates 15 electrical transmission; 16 (5) "Wildfire," an unplanned, unintentional unwanted fire burning in this state that: 17 (a) May impact, damage, or cause harm, including to natural resources, 18 agricultural resources, homes, and property; or 19 (b) Threatens lives and safety; and 20 (6) "Wildfire mitigation plan," a plan submitted to and approved or published by the 21 approval authority in accordance with the requirements of this chapter. 22 Section 2. That a NEW SECTION be added to a NEW CHAPTER in title 49: 23 A qualified utility that is not an electric cooperative or municipal utility may submit 24 a wildfire mitigation plan to the commission for filing and publishing. The commission shall 25 26.558.16 26.558.17 2 36 Underscores indicate new language. Overstrikes indicate deleted language. file and publish on its website all wildfire mitigation plans submitted to it within one 1 hundred twenty days of receipt. Any wildfire mitigation plan or amendment submitted to 2 the commission must be accompanied by a five hundred dollar filing fee to be deposited 3 in the gross receipts tax fund established by § 49-1A-1. An amendment to a qualified 4 utility's wildfire mitigation plan may also be submitted pursuant to this chapter and is 5 subject to the same process and requirements. 6 A wildfire mitigation plan submitted to the commission must contain an attestation 7 signed by an officer of the utility submitting the plan. The attestation must contain a 8 statement certifying that the plan contains all provisions required by this chapter. 9 Publication of a wildfire mitigation plan or annual report by the commission is a 10 determination that the wildfire mitigation plan contains the statutory elements and is 11 complete. 12 The commission may promulgate rules, pursuant to chapter 1-26, to further 13 implement the provisions of this section. 14 A qualified utility that is an electric cooperative or a municipal utility may submit a 15 wildfire mitigation plan to its approval authority for review and approval. The approval 16 authority shall act upon a submitted wildfire mitigation plan within one hundred twenty 17 days of submission. If approved, the electric cooperative or municipal utility must publish 18 the wildfire mitigation plan on its website. 19 Section 3. That a NEW SECTION be added to a NEW CHAPTER in title 49: 20 A qualified utility with a published wildfire mitigation plan shall submit an annual 21 report detailing the qualified utility's compliance with its wildfire mitigation plan for the 22 previous calendar year to the commission or to its approval authority, no later than April June 23 first of each year. Annual reports submitted to the commission must be accompanied by 24 a two hundred fifty dollar filing fee to be deposited in the gross receipts tax fund 25 established by § 49-1A-1. The commission shall file and publish the report within sixty 26 days of receipt. The electric cooperative or municipal utility shall publish the report on its 27 website within sixty days of filing with the approval authority. The wildfire mitigation plan 28 is valid and current if it is on file and all annual reports are timely filed with the commission 29 or approval authority. The qualified utility shall file an update to the wildfire mitigation 30 plan at least once every five years. 31 Section 4. That a NEW SECTION be added to a NEW CHAPTER in title 49: 31 32 A wildfire mitigation plan must include, at a minimum: 32 26.558.16 33 26.558.17 3 36 Underscores indicate new language. Overstrikes indicate deleted language. (1) A description of areas within the service territory or facility locations of the qualified 1 utility, which may be subject to a heightened risk of wildfire; 2 (2) A description of the procedures or strategies, standards, and time frames that the 3 qualified utility will use to inspect and operate its infrastructure; 4 (3) A description of the procedures or strategies, and standards that the qualified utility 5 will use to perform vegetation management; 6 (4) A description of the procedures or strategies for modifications or upgrades to 7 electric facilities and preventative programs to reduce the risk of its electric 8 facilities initiating a wildfire; 9 (5) A description of considerations or strategies for de-energizing power lines or 10 modifying electric facility operations to mitigate potential wildfires, taking into 11 consideration: 12 (a) The ability of the qualified utility to reasonably access the proposed 13 powerline to be de-energized; 14 (b) The balance of the risk of wildfire with the need for continued supply of 15 electricity to a community; and 16 (c) Any potential impact to public safety and first responders, as applicable; 17 (6) A description of the procedures or strategies the qualified utility intends to use to 18 restore its electrical system in the event of a wildfire; 19 (7) A description of the estimated incremental costs, if any, for the implementation of 20 the plan, including system improvements and upgrades; 21 (8) A description of community outreach and public awareness efforts before and 22 during a wildfire season; and 23 (9) A description of coordination with applicable state or local wildfire agencies. 24 Section 5. That a NEW SECTION be added to a NEW CHAPTER in title 49: 25 The commission may authorize a public utility as defined in subdivision 49-34A-26 1(12) to recover in rates all prudently incurred investments and expenditures, including 27 the costs of capital, made to implement an approved wildfire mitigation plan. 28 Cost recovery for wildfire mitigation plan implementation may be allowed by the 29 commission, notwithstanding any settlement agreement provisions that restrict a public 30 utility's ability to seek rate relief. 31 Section 6. That a NEW SECTION be added to a NEW CHAPTER in title 49: 32 26.558.16 26.558.17 4 36 Underscores indicate new language. Overstrikes indicate deleted language. A standard of strict liability may not be applied to a qualified utility in any cause of 1 action alleging that the qualified utility caused wildfire-related damages. A qualified 2 utility's facilities and activities may not be considered ultra-hazardous or abnormally 3 dangerous. 4 A plaintiff's sole remedy against a qualified utility for damages and losses resulting 5 from a wildfire is in this chapter. 6 Except as otherwise provided in this section, there is a rebuttable presumption in 7 any civil action that a valid and current wildfire mitigation plan is a reasonable and prudent 8 preparation for, and mitigation of, wildfire risk. A plaintiff may recover damages from a 9 qualified utility with a valid and current wildfire mitigation plan, as a result of a wildfire, 10 only if the plaintiff proves one or more of the following by a preponderance of the 11 evidence: 12 (1) The qualified utility failed to substantially comply with an essential element of a 13 valid and current wildfire mitigation plan, and that failure was the actual and 14 proximate cause of the damages to the plaintiff. For purposes of this subdivision, 15 a qualified utility is deemed to have substantially complied with its wildfire 16 mitigation plan if the qualified utility attempted to comply with the plan but was 17 denied or delayed access to a right-of-way after the qualified utility requested 18 access to the right-of-way to perform vegetation management or fire mitigation 19 work in accordance with the plan; or 20 (2) The qualified utility acted with malice or criminal intent, and the qualified utility's 21 malicious action or criminal intent was the actual and proximate cause of the 22 damages to the plaintiff. 23 A civil action filed against a qualified utility for damages caused by wildfire may 24 only be brought within three years after the date of the initial ignition of the wildfire. 25 A plaintiff in a civil action filed against a qualified utility for damages caused by 26 wildfire may recover economic losses and property damages but only under the conditions 27 of this chapter. The plaintiff may not recover noneconomic losses unless the plaintiff 28 suffered death or visible bodily injury in the form of a burn from a wildfire. 29 The plaintiff may not recover punitive damages unless it is proven by clear and 30 convincing evidence that the qualified utility acted with malice or criminal intent and the 31 qualified utility's malicious action or criminal intent was the actual and proximate cause of 32 damages to the plaintiff. 33 The amount of damages recoverable for damage to real or personal property is the 34 lesser of the cost to restore the property to the property's pre-wildfire condition or the 35 26.558.16 26.558.17 5 36 Underscores indicate new language. Overstrikes indicate deleted language. difference between the fair market value of the property immediately before the wildfire 1 and the fair market value of the property after the wildfire. 2 Nothing in this section may be construed to limit any defenses that a qualified 3 utility may be entitled to raise in a civil action for damages caused by wildfire. 4 The provisions of this section only apply to a qualified utility with a valid and current 5 wildfire mitigation plan as of the date of the initial ignition of the wildfire for which damages 6 are sought. 7 Section 7. That a NEW SECTION be added to a NEW CHAPTER in title 49: 5 8 A person who obtains payment for damages resulting from wildfire pursuant to a 6 9 policy of insurance is deemed to have been made whole exclusively for purposes of an 7 10 insurer's right to subrogation. 8 11

26.558.17 26.558.18 101st Legislative Session 36 2026 South Dakota Legislature Senate Bill 36 SENATE COMMERCE AND ENERGY ENGROSSED Introduced by: Senator Kolbeck (Steve) Underscores indicate new language. Overstrikes indicate deleted language. An Act to authorize utilities to establish wildfire mitigation plans and associated 1 liability limitations for wildfire damages. 2 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA: 3 Section 1. That a NEW SECTION be added to a NEW CHAPTER in title 49: 4 Terms used in this chapter mean: 5 (1) "Approval authority," in the case of an electric cooperative, its board of directors, 6 or in the case of a municipal utility, its city council or city commission, as the case 7 may be; 8 (2) "Commission," the Public Utilities Commission of the State of South Dakota; 9 (3) "Economic loss," monetary loss, including losses resulting from medical expenses, 10 business interruption, loss of business, loss of use of property, and loss due to 11 death and burial costs; 12 (4) "Qualified utility," includes: 13 (a) Any electric utility defined in subdivision 49-34A-1(7); and 14 (b) Any person who is a wholesale generator of electricity and who operates 15 electrical transmission; 16 (5) "Wildfire," an unplanned, unwanted fire burning in this state that: 17 (a) May impact, damage, or cause harm, including to natural resources, 18 agricultural resources, homes, and property; or 19 (b) Threatens lives and safety; and 20 (6) "Wildfire mitigation plan," a plan submitted to and approved or published by the 21 approval authority in accordance with the requirements of this chapter. 22 Section 2. That a NEW SECTION be added to a NEW CHAPTER in title 49: 23 A qualified utility that is not an electric cooperative or municipal utility may submit 24 a wildfire mitigation plan to the commission for filing and publishing. The commission shall 25 26.558.17 26.558.18 2 36 Underscores indicate new language. Overstrikes indicate deleted language. file and publish on its website all wildfire mitigation plans submitted to it within one 1 hundred twenty days of receipt. Any wildfire mitigation plan or amendment submitted to 2 the commission must be accompanied by a five hundred dollar filing fee to be deposited 3 in the gross receipts tax fund established by § 49-1A-1. An amendment to a qualified 4 utility's wildfire mitigation 2 plan may also be submitted pursuant to this chapter and is 5 subject to the same process 3 and requirements. 6 4 A wildfire mitigation plan submitted to the commission must contain an attestation 7 5 signed by an officer of the utility submitting the plan. The attestation must contain a 8 6 statement certifying that the plan contains all provisions required by this chapter. 9 7 Publication of a wildfire mitigation plan or annual report by the commission is a 10 8 determination that the wildfire mitigation plan contains the statutory elements and is 11 9 complete. 12 10 The commission may promulgate rules, pursuant to chapter 1-26, to further 13 11 implement the provisions of this section. 14 12 A qualified utility that is an electric cooperative or a municipal utility may submit a 15 13 wildfire mitigation plan to its approval authority for review and approval. The approval 16 14 authority shall act upon a submitted wildfire mitigation plan within one hundred twenty 17 15 days of submission. If approved, the electric cooperative or municipal utility must publish 18 16 the wildfire mitigation plan on its website. 19 17 Section 3. That a NEW SECTION be added to a NEW CHAPTER in title 49: 20 18 A qualified utility with a published wildfire mitigation plan shall submit an annual 21 19 report detailing the qualified utility's compliance with its wildfire mitigation plan for the 22 20 previous calendar year to the commission or to its approval authority, no later than June 23 21 first of each year. Annual reports submitted to the commission must be accompanied by 24 a two hundred fifty dollar filing fee to be deposited in the gross receipts tax fund 25 established by § 49-1A-1. The commission shall file and publish the report within sixty 26 days of 22 receipt. The electric cooperative or municipal utility shall publish the report on its 27 website 23 within sixty days of filing with the approval authority. The wildfire mitigation plan 28 is valid 24 and current if it is on file and all annual reports are timely filed with the commission 29 or 25 approval authority. The qualified utility shall file an update to the wildfire mitigation 30 plan 26 at least once every five years. 31 27 Section 4. That a NEW SECTION be added to a NEW CHAPTER in title 49: 32 28 A wildfire mitigation plan must include, at a minimum: 33 26.558.17 3 36 Underscores indicate new language. Overstrikes indicate deleted language. 29 (1) A description of areas within the service territory or facility locations of the qualified 1 30 utility, which may be subject to a heightened risk of wildfire; 2 31 (2) A description of the procedures or strategies, standards, and time frames that the 3 32 qualified utility will use to inspect and operate its infrastructure; 4 33 26.558.18 3 36 Underscores indicate new language. Overstrikes indicate deleted language. (3) A description of the procedures or strategies, and standards that the qualified utility 5 1 will use to perform vegetation management; 6 2 (4) A description of the procedures or strategies for modifications or upgrades to 7 3 electric facilities and preventative programs to reduce the risk of its electric 8 4 facilities initiating a wildfire; 9 5 (5) A description of considerations or strategies for de-energizing power lines or 10 6 modifying electric facility operations to mitigate potential wildfires, taking into 11 7 consideration: 12 8 (a) The ability of the qualified utility to reasonably access the proposed 13 9 powerline to be de-energized; 14 10 (b) The balance of the risk of wildfire with the need for continued supply of 15 11 electricity to a community; and 16 12 (c) Any potential impact to public safety and first responders, as applicable; 17 13 (6) A description of the procedures or strategies the qualified utility intends to use to 18 14 restore its electrical system in the event of a wildfire; 19 15 (7) A description of the estimated incremental costs, if any, for the implementation of 20 16 the plan, including system improvements and upgrades; 21 17 (8) A description of community outreach and public awareness efforts before and 22 18 during a wildfire season; and 23 19 (9) A description of coordination with applicable state or local wildfire agencies. 24 20 Section 5. That a NEW SECTION be added to a NEW CHAPTER in title 49: 25 21 The commission may authorize a public utility as defined in subdivision 49-34A-26 49-34A-22 1(12) to recover in rates all prudently incurred investments and expenditures, including 27 23 the costs of capital, made to implement an approved wildfire mitigation plan. 28 24 Cost recovery for wildfire mitigation plan implementation may be allowed by the 29 25 commission, notwithstanding any settlement agreement provisions that restrict a public 30 26 utility's ability to seek rate relief. 31 27 Section 6. That a NEW SECTION be added to a NEW CHAPTER in title 49: 32 26.558.17 4 36 Underscores indicate new language. Overstrikes indicate deleted language. 28 A standard of strict liability may not be applied to a qualified utility in any cause of 1 29 action alleging that the qualified utility caused wildfire-related damages. A qualified 2 30 utility's facilities and activities may not be considered ultra-hazardous or abnormally 3 31 dangerous. 32 26.558.18 4 36 Underscores indicate new language. Overstrikes indicate deleted language. A plaintiff's sole remedy against a qualified utility for damages and losses resulting 5 1 from a wildfire is in this chapter. 6 2 Except as otherwise provided in this section, there is a rebuttable presumption in 7 3 any civil action that a valid and current wildfire mitigation plan is a reasonable and prudent 8 4 preparation for, and mitigation of, wildfire risk. A plaintiff may recover damages from a 9 5 qualified utility with a valid and current wildfire mitigation plan, as a result of a wildfire, 10 6 only if the plaintiff proves one or more of the following by a preponderance of the 11 7 evidence: 12 8 (1) The qualified utility failed to substantially comply with an essential element of a 13 9 valid and current wildfire mitigation plan, and that failure was the actual and 14 10 proximate cause of the damages to the plaintiff. For purposes of this subdivision, 15 11 a qualified utility is deemed to have substantially complied with its wildfire 16 12 mitigation plan if the qualified utility attempted to comply with the plan but was 17 13 denied or delayed access to a right-of-way after the qualified utility requested 18 14 access to the right-of-way to perform vegetation management or fire mitigation 19 15 work in accordance with the plan; or 20 16 (2) The qualified utility acted with malice or criminal intent, and the qualified utility's 21 17 malicious action or criminal intent was the actual and proximate cause of the 22 18 damages to the plaintiff. 23 19 A civil action filed against a qualified utility for damages caused by wildfire may 24 20 only be brought within three years after the date of the initial ignition of the wildfire. 25 21 A plaintiff in a civil action filed against a qualified utility for damages caused by 26 22 wildfire may recover economic losses and property damages but only under the conditions 27 23 of this chapter. The plaintiff may not recover noneconomic losses unless the plaintiff 28 24 suffered death or visible bodily injury in the form of a burn from a wildfire. 29 25 The plaintiff may not recover punitive damages unless it is proven by clear and 30 26 convincing evidence that the qualified utility acted with malice or criminal intent and the 31 27 qualified utility's malicious action or criminal intent was the actual and proximate cause of 32 28 damages to the plaintiff. 33 29 The amount of damages recoverable for damage to real or personal property is the 34 30 lesser of the cost to restore the property to the property's pre-wildfire condition or the 35 26.558.17 5 36 Underscores indicate new language. Overstrikes indicate deleted language. 31 difference between the fair market value of the property immediately before the wildfire 1 32 and the fair market value of the property after the wildfire. 2 33 Nothing in this section may be construed to limit any defenses that a qualified 3 34 utility may be entitled to raise in a civil action for damages caused by wildfire. 4 35 26.558.18 5 36 Underscores indicate new language. Overstrikes indicate deleted language. The provisions of this section only apply to a qualified utility with a valid and current 5 1 wildfire mitigation plan as of the date of the initial ignition of the wildfire for which damages 6 2 are sought. 7 3 Section 7. That a NEW SECTION be added to a NEW CHAPTER in title 49: 8 4 A person who obtains payment for damages resulting from wildfire pursuant to a 9 5 policy of insurance is deemed to have been made whole exclusively for purposes of an 10 6 insurer's right to subrogation. 11 7

26.558.18 26.558.19 101st Legislative Session 36 2026 South Dakota Legislature Senate Bill 36 SENATE HOUSE COMMERCE AND ENERGY ENGROSSED Introduced by: Senator Kolbeck (Steve) Underscores indicate new language. Overstrikes indicate deleted language. An Act to authorize certain utilities to establish wildfire mitigation plans and 1 associated 1 liability limitations for wildfire damages. 2 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA: 3 Section 1. That a NEW SECTION be added to a NEW CHAPTER in title 49: 4 Terms used in this chapter mean: 5 (1) "Approval authority," in the case of an electric cooperative, its board of directors, 6 or in the case of a municipal utility, its city council or city commission, as the case 7 may be; 8 (2) "Commission," the Public Utilities Commission of the State of South Dakota; 9 (3) "Economic loss," monetary loss, including losses resulting from medical expenses, 10 business interruption, loss of business, loss of use of property, and loss due to 11 death and burial costs; 12 (4) "Qualified utility," includes: 13 (a) Any electric utility defined in subdivision 49-34A-1(7); and 14 (b) Any person who is a wholesale generator of electricity and who operates 15 electrical transmission; 16 (5) "Wildfire," an unplanned, unwanted fire burning in this state that: 17 (a) May impact, damage, or cause harm, including to natural resources, 18 agricultural resources, homes, and property; or 19 (b) Threatens lives and safety; and 20 (6) "Wildfire mitigation plan," a plan submitted to and approved by the approval 21 authority or published by the 21 approval authority commission in accordance with the requirements of 22 this chapter. 22 23 Section 2. That a NEW SECTION be added to a NEW CHAPTER in title 49: 23 24 26.558.19 2 36 Underscores indicate new language. Overstrikes indicate deleted language. A qualified utility that is not an electric cooperative or municipal utility may submit 24 1 a wildfire mitigation plan to the commission for filing and publishing. The commission shall 25 26.558.18 2 36 Underscores indicate new language. Overstrikes indicate deleted language. file and publish on its website all wildfire mitigation plans submitted to it within one 1 3 hundred twenty days of receipt. An amendment to a qualified utility's wildfire mitigation 2 4 plan may also be submitted pursuant to this chapter and is subject to the same process 3 5 and requirements. 4 6 A wildfire mitigation plan submitted to the commission must contain an attestation 5 7 signed by an officer of the utility submitting the plan. The attestation must contain a 6 8 statement certifying that the plan contains all provisions required by this chapter. 7 9 Publication of a wildfire mitigation plan or annual report by the commission is a 8 10 determination that the wildfire mitigation plan contains the statutory elements and is 9 11 complete. 10 12 The commission may promulgate rules, pursuant to chapter 1-26, to further 11 13 implement the provisions of this section. 12 14 A qualified utility that is an electric cooperative or a municipal utility may submit a 13 15 wildfire mitigation plan to its approval authority for review and approval. The approval 14 16 authority shall act upon a submitted wildfire mitigation plan within one hundred twenty 15 17 days of submission. If approved, the electric cooperative or municipal utility must publish 16 18 the wildfire mitigation plan on its website. 17 19 Section 3. That a NEW SECTION be added to a NEW CHAPTER in title 49: 18 20 A qualified utility with a published wildfire mitigation plan shall submit an annual 19 21 report detailing the qualified utility's compliance with its wildfire mitigation plan for the 20 22 previous calendar year to the commission or to its approval authority, no later than June 21 23 first of each year. The commission shall file and publish the report within sixty days of 22 24 receipt. The electric cooperative or municipal utility shall publish the report on its website 23 25 within sixty days of filing with the approval authority. The wildfire mitigation plan is valid 24 26 and current if it is on file and all annual reports are timely filed with the commission or 25 27 approval authority. The qualified utility shall file an update to the wildfire mitigation plan 26 28 at least once every five two years. 27 29 Section 4. That a NEW SECTION be added to a NEW CHAPTER in title 49: 28 30 A wildfire mitigation plan must include, at a minimum: 29 31 (1) A description of areas within the service territory or facility locations of the qualified 30 32 utility, which may be subject to a heightened risk of wildfire; 31 33 26.558.19 3 36 Underscores indicate new language. Overstrikes indicate deleted language. (2) A description of the procedures or strategies, standards, and time frames that the 32 1 qualified utility will use to inspect and operate its infrastructure; 33 26.558.18 3 36 Underscores indicate new language. Overstrikes indicate deleted language. 2 (3) A description of the procedures or strategies, and standards that the qualified utility 1 3 will use to perform vegetation management; 2 4 (4) A description of the procedures or strategies for modifications or upgrades to 3 5 electric facilities and preventative programs to reduce the risk of its electric 4 6 facilities initiating a wildfire; 5 7 (5) A description of considerations or strategies for de-energizing power lines or 6 8 modifying electric facility operations to mitigate potential wildfires, taking into 7 9 consideration: 8 10 (a) The ability of the qualified utility to reasonably access the proposed 9 11 powerline to be de-energized; 10 12 (b) The balance of the risk of wildfire with the need for continued supply of 11 13 electricity to a community; and 12 14 (c) Any potential impact to public safety and first responders, as applicable; 13 15 (6) A description of the procedures or strategies the qualified utility intends to use to 14 16 restore its electrical system in the event of a wildfire; 15 17 (7) A description of the estimated incremental costs, if any, for the implementation of 16 18 the plan, including system improvements and upgrades; 17 19 (8) A description of community outreach and public awareness efforts before and 18 20 during a wildfire season; and 19 21 (9) A description of coordination with applicable state or local wildfire agencies. 20 22 The procedures and standards under this section must comply with the 2023 23 National Electrical Safety Code. 24 Section 5. That a NEW SECTION be added to a NEW CHAPTER in title 49: 21 25 The commission may authorize a public utility as defined in subdivision 49-34A-22 49-34A-26 1(12) to recover in rates all prudently incurred investments and expenditures, including 23 27 the costs of capital, made to implement an approved wildfire mitigation plan. 24 28 Cost recovery for wildfire mitigation plan implementation may be allowed by the 25 29 commission, notwithstanding any settlement agreement provisions that restrict a public 26 30 utility's ability to seek rate relief. 27 31 Section 6. That a NEW SECTION be added to a NEW CHAPTER in title 49: 28 32 26.558.19 4 36 Underscores indicate new language. Overstrikes indicate deleted language. A standard of strict liability may not be applied to a qualified utility in any cause of 29 1 action alleging that the qualified utility caused wildfire-related damages. A qualified 30 2 utility's facilities and activities may not be considered ultra-hazardous or abnormally 31 3 dangerous. 32 26.558.18 4 36 Underscores indicate new language. Overstrikes indicate deleted language. A plaintiff's sole remedy against a qualified utility for damages and losses resulting 1 5 from a wildfire is in this chapter. 2 6 Except as otherwise provided in this section, there is a rebuttable presumption in 3 7 any civil action that a valid and current wildfire mitigation plan is a reasonable and prudent 4 8 preparation for, and mitigation of, wildfire risk. A plaintiff may recover damages damages, as a 9 result of a wildfire from a 5 qualified utility with a valid and current wildfire mitigation plan, as a result of a wildfire, 6 plan 10 only if the plaintiff proves one or more both of the following by a preponderance of the 7 evidence: 8 11 (1) The qualified utility failed to substantially comply with an essential element of a 9 12 valid and current wildfire mitigation plan, and that failure was the actual and 10 13 proximate cause of the damages to the plaintiff. For purposes of this subdivision, 11 14 a qualified utility is deemed to have substantially complied with its wildfire 12 15 mitigation plan if the qualified utility attempted to comply with the plan but was 13 16 denied or delayed access to a right-of-way after the qualified utility requested 14 17 access to the right-of-way to perform vegetation management or fire mitigation 15 18 work in accordance with the plan; or 16 19 (2) The qualified utility acted with malice or criminal intent, and the qualified utility's 17 20 malicious action or criminal intent was the actual and proximate cause of the 18 21 damages to the plaintiff. 19 22 A civil action filed against a qualified utility for damages caused by wildfire may 20 23 only be brought within three four years after the date of the initial ignition of the wildfire. 21 24 A plaintiff in a civil action filed against a qualified utility for damages caused by 22 25 wildfire may recover economic losses and property damages but only under the conditions 23 26 of this chapter. The plaintiff may not recover noneconomic losses unless the plaintiff 24 27 suffered death or death, visible bodily injury, smoke inhalation, or a medically verifiable bodily 28 injury in the form of a burn from a wildfire. 25 29 The plaintiff may not recover punitive damages unless it is proven by clear and 26 30 convincing evidence that the qualified utility acted with malice or criminal intent engaged in willful and wanton misconduct 31 and the 27 qualified utility's malicious action or criminal intent willful and wanton misconduct was the actual and proximate 32 cause of 28 damages to the plaintiff. 29 33 The amount of damages recoverable for damage to real property, or personal property buildings and 34 fixtures to real property, is the 30 lesser of the cost to restore the property to the property's 35 26.558.19 5 36 Underscores indicate new language. Overstrikes indicate deleted language. pre-wildfire condition or the 31 difference between the fair market value of the property 1 immediately before the wildfire 32 and the fair market value of the property after the wildfire. 33 2 For personal property of all kinds, including livestock and growing crops, the 3 measure of damages is either the full market value, if the personal property has been 4 destroyed, or the reasonable expense of necessary repairs or treatment, plus loss of use, 5 if the personal property has been damaged or injured. 6 Nothing in this section may be construed to limit any defenses that a qualified 34 7 utility may be entitled to raise in a civil action for damages caused by wildfire. 35 26.558.18 5 36 Underscores indicate new language. Overstrikes indicate deleted language. 8 The provisions of this section only apply to a qualified utility with a valid and current 1 9 wildfire mitigation plan as of the date of the initial ignition of the wildfire for which damages 2 10 are sought. 3 11 Section 7. That a NEW SECTION be added to a NEW CHAPTER in title 49: 4 12 A person who obtains payment for damages resulting from wildfire pursuant to a 5 13 policy of insurance is deemed to have been made whole exclusively for purposes of an 6 14 insurer's right to subrogation. 7 In all other respects, the law of the state on matters of 15 subrogation is applicable. 16

26.558.19 26.558.20 101st Legislative Session 36 2026 South Dakota Legislature Senate Bill 36 HOUSE COMMERCE AND ENERGY ENGROSSED Introduced by: Senator Kolbeck (Steve) Underscores indicate new language. Overstrikes indicate deleted language. ENROLLED AN ACT ENTITLED An Act to authorize certain utilities to establish wildfire mitigation plans and 1 associated liability limitations for wildfire damages. 2 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA: 3 Section 1. That a NEW SECTION be added to a NEW CHAPTER in title 49: 4 Terms used in this chapter mean: 5 (1) "Approval authority," in the case of an electric cooperative, its board of directors, 6 or in the case of a municipal utility, its city council or city commission, as the case 7 may be; 8 (2) "Commission," the Public Utilities Commission of the State of South Dakota; 9 (3) "Economic loss," monetary loss, including losses resulting from medical expenses, 10 business interruption, loss of business, loss of use of property, and loss due to 11 death and burial costs; 12 (4) "Qualified utility," includes: 13 (a) Any electric utility defined in subdivision 49-34A-1(7); and 14 (b) Any person who is a wholesale generator of electricity and who operates 15 electrical transmission; 16 (5) "Wildfire," an unplanned, unwanted fire burning in this state that: 17 (a) May impact, damage, or cause harm, including to natural resources, 18 agricultural resources, homes, and property; or 19 (b) Threatens lives and safety; and 20 (6) "Wildfire mitigation plan," a plan submitted to and approved by the approval 21 authority or published by the commission in accordance with the requirements of 22 this chapter. 23 Section 2. That a NEW SECTION be added to a NEW CHAPTER in title 49: 24 26.558.19 26.558.20 2 36 Underscores indicate new language. Overstrikes indicate deleted language. SB36 ENROLLED A qualified utility that is not an electric cooperative or municipal utility may submit 1 a wildfire mitigation plan to the commission for filing and publishing. The commission shall 2 file and publish on its website all wildfire mitigation plans submitted to it within one 3 hundred twenty days of receipt. An amendment to a qualified utility's wildfire mitigation 4 plan may also be submitted pursuant to this chapter and is subject to the same process 5 and requirements. 6 A wildfire mitigation plan submitted to the commission must contain an attestation 7 signed by an officer of the utility submitting the plan. The attestation must contain a 8 statement certifying that the plan contains all provisions required by this chapter. 9 Publication of a wildfire mitigation plan or annual report by the commission is a 10 determination that the wildfire mitigation plan contains the statutory elements and is 11 complete. 12 The commission may promulgate rules, pursuant to chapter 1-26, to further 13 implement the provisions of this section. 14 A qualified utility that is an electric cooperative or a municipal utility may submit a 15 wildfire mitigation plan to its approval authority for review and approval. The approval 16 authority shall act upon a submitted wildfire mitigation plan within one hundred twenty 17 days of submission. If approved, the electric cooperative or municipal utility must publish 18 the wildfire mitigation plan on its website. 19 Section 3. That a NEW SECTION be added to a NEW CHAPTER in title 49: 20 A qualified utility with a published wildfire mitigation plan shall submit an annual 21 report detailing the qualified utility's compliance with its wildfire mitigation plan for the 22 previous calendar year to the commission or to its approval authority, no later than June 23 first of each year. The commission shall file and publish the report within sixty days of 24 receipt. The electric cooperative or municipal utility shall publish the report on its website 25 within sixty days of filing with the approval authority. The wildfire mitigation plan is valid 26 and current if it is on file and all annual reports are timely filed with the commission or 27 approval authority. The qualified utility shall file an update to the wildfire mitigation plan 28 at least once every two years. 29 Section 4. That a NEW SECTION be added to a NEW CHAPTER in title 49: 30 A wildfire mitigation plan must include, at a minimum: 31 (1) A description of areas within the service territory or facility locations of the qualified 32 utility, which may be subject to a heightened risk of wildfire; 33 26.558.19 26.558.20 3 36 Underscores indicate new language. Overstrikes indicate deleted language. SB36 ENROLLED (2) A description of the procedures or strategies, standards, and time frames that the 1 qualified utility will use to inspect and operate its infrastructure; 2 (3) A description of the procedures or strategies, and standards that the qualified utility 3 will use to perform vegetation management; 4 (4) A description of the procedures or strategies for modifications or upgrades to 5 electric facilities and preventative programs to reduce the risk of its electric 6 facilities initiating a wildfire; 7 (5) A description of considerations or strategies for de-energizing power lines or 8 modifying electric facility operations to mitigate potential wildfires, taking into 9 consideration: 10 (a) The ability of the qualified utility to reasonably access the proposed 11 powerline to be de-energized; 12 (b) The balance of the risk of wildfire with the need for continued supply of 13 electricity to a community; and 14 (c) Any potential impact to public safety and first responders, as applicable; 15 (6) A description of the procedures or strategies the qualified utility intends to use to 16 restore its electrical system in the event of a wildfire; 17 (7) A description of the estimated incremental costs, if any, for the implementation of 18 the plan, including system improvements and upgrades; 19 (8) A description of community outreach and public awareness efforts before and 20 during a wildfire season; and 21 (9) A description of coordination with applicable state or local wildfire agencies. 22 The procedures and standards under this section must comply with the 2023 23 National Electrical Safety Code. 24 Section 5. That a NEW SECTION be added to a NEW CHAPTER in title 49: 25 The commission may authorize a public utility as defined in subdivision 49-34A-26 1(12) 49-34A-1(12) to recover in rates all prudently incurred investments and expenditures, including 27 the costs of capital, made to implement an approved wildfire mitigation plan. 28 Cost recovery for wildfire mitigation plan implementation may be allowed by the 29 commission, notwithstanding any settlement agreement provisions that restrict a public 30 utility's ability to seek rate relief. 31 Section 6. That a NEW SECTION be added to a NEW CHAPTER in title 49: 32 26.558.19 26.558.20 4 36 Underscores indicate new language. Overstrikes indicate deleted language. SB36 ENROLLED A standard of strict liability may not be applied to a qualified utility in any cause of 1 action alleging that the qualified utility caused wildfire-related damages. A qualified 2 utility's facilities and activities may not be considered ultra-hazardous or abnormally 3 dangerous. 4 A plaintiff's sole remedy against a qualified utility for damages and losses resulting 5 from a wildfire is in this chapter. 6 Except as otherwise provided in this section, there is a rebuttable presumption in 7 any civil action that a valid and current wildfire mitigation plan is a reasonable and prudent 8 preparation for, and mitigation of, wildfire risk. A plaintiff may recover damages, as a 9 result of a wildfire from a qualified utility with a valid and current wildfire mitigation plan 10 only if the plaintiff proves one or both of the following by a preponderance of the evidence: 11 (1) The qualified utility failed to substantially comply with an essential element of a 12 valid and current wildfire mitigation plan, and that failure was the actual and 13 proximate cause of the damages to the plaintiff. For purposes of this subdivision, 14 a qualified utility is deemed to have substantially complied with its wildfire 15 mitigation plan if the qualified utility attempted to comply with the plan but was 16 denied or delayed access to a right-of-way after the qualified utility requested 17 access to the right-of-way to perform vegetation management or fire mitigation 18 work in accordance with the plan; or 19 (2) The qualified utility acted with malice or criminal intent, and the qualified utility's 20 malicious action or criminal intent was the actual and proximate cause of the 21 damages to the plaintiff. 22 A civil action filed against a qualified utility for damages caused by wildfire may 23 only be brought within four years after the date of the initial ignition of the wildfire. 24 A plaintiff in a civil action filed against a qualified utility for damages caused by 25 wildfire may recover economic losses and property damages but only under the conditions 26 of this chapter. The plaintiff may not recover noneconomic losses unless the plaintiff 27 suffered death, visible bodily injury, smoke inhalation, or a medically verifiable bodily 28 injury from a wildfire. 29 The plaintiff may not recover punitive damages unless it is proven by clear and 30 convincing evidence that the qualified utility engaged in willful and wanton misconduct 31 and the qualified utility's willful and wanton misconduct was the actual and proximate 32 cause of damages to the plaintiff. 33 The amount of damages recoverable for damage to real property, or buildings and 34 fixtures to real property, is the lesser of the cost to restore the property to the property's 35 26.558.19 26.558.20 5 36 Underscores indicate new language. Overstrikes indicate deleted language. SB36 ENROLLED pre-wildfire condition or the difference between the fair market value of the property 1 immediately before the wildfire and the fair market value of the property after the wildfire. 2 For personal property of all kinds, including livestock and growing crops, the 3 measure of damages is either the full market value, if the personal property has been 4 destroyed, or the reasonable expense of necessary repairs or treatment, plus loss of use, 5 if the personal property has been damaged or injured. 6 Nothing in this section may be construed to limit any defenses that a qualified 7 utility may be entitled to raise in a civil action for damages caused by wildfire. 8 The provisions of this section only apply to a qualified utility with a valid and current 9 wildfire mitigation plan as of the date of the initial ignition of the wildfire for which damages 10 are sought. 11 Section 7. That a NEW SECTION be added to a NEW CHAPTER in title 49: 12 A person who obtains payment for damages resulting from wildfire pursuant to a 13 policy of insurance is deemed to have been made whole exclusively for purposes of an 14 insurer's right to subrogation. In all other respects, the law of the state on matters of 15 subrogation is applicable. 16 26.558.20 6 36 SB36 ENROLLED An Act to authorize certain utilities to establish wildfire mitigation plans and associated liability limitations for wildfire damages. I certify that the attached Act originated in the: Senate as Bill No. 36 Secretary of the Senate President of the Senate Attest: Secretary of the Senate Speaker of the House Attest: Chief Clerk of the House Senate Bill No. 36 File No. ____ Chapter No. ______ Received at this Executive Office this _____ day of _____________, 2026 at ____________M. By for the Governor The attached Act is hereby approved this ________ day of ______________, A.D., 2026 Governor STATE OF SOUTH DAKOTA, ss. Office of the Secretary of State Filed ____________, 2026 at _________ o'clock __M. Secretary of State By Asst. Secretary of State