Read the full stored bill text
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
SB36 ENROLLED
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 hundre d 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 lat er 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. T he 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;
26.558.20 3 36
SB36 ENROLLED
(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:
26.558.20 4 36
SB36 ENROLLED
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 ab normally
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 dam ages, 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 qualif ied 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 righ t-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 plain tiff
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
26.558.20 5 36
SB36 ENROLLED
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.
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