South Dakota law ties utility wildfire claims to current safety plans

The law limits when a person may recover wildfire damages from a qualified utility. A qualified utility includes an electric utility or a wholesale electricity generator that operates electric transmission. The utility must have a valid, current wildfire plan when the fire first ignites. The person must prove that the utility failed substantially to follow an essential plan element and caused the harm, or acted with malice or criminal intent and caused it. A utility is treated as substantially compliant if it tried to do required work but was denied or delayed right-of-way access after requesting it. A wildfire damages lawsuit must be filed within four years after the fire first ignites.

The law sets rules for utilities to submit, publish, and maintain wildfire plans. The plan rules cover qualified utilities, including electric utilities and wholesale electricity generators that operate electric transmission. Electric cooperatives and municipal utilities submit plans to their board or local government approval authority; other qualified utilities submit plans to the Public Utilities Commission. Plans must describe wildfire risks and steps to reduce them, including inspections, vegetation work, power shutoffs, system restoration, public outreach, costs, and coordination with wildfire agencies. Plan procedures and standards must comply with the 2023 National Electrical Safety Code. The commission or local approval authority must act within 120 days. Utilities with published plans must file annual reports by June 1 about the previous calendar year and update plans at least every two years.

The Public Utilities Commission may let a public utility recover certain plan costs through customer rates. This provision applies to a public utility as defined in South Dakota law. The costs must be prudently incurred to carry out an approved wildfire plan, including financing costs.