SB 36

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