Bill Summary – FastDemocracy

Enrolled Copy                                                                             H.B. 66
                 WILDLAND FIRE PLANNING AND COST RECOVERY
                                           AMENDMENTS
                                       2020 GENERAL SESSION
                                             STATE OF UTAH
                                Chief Sponsor: Carl R. Albrecht
                                 Senate Sponsor: Scott D. Sandall
 7
 LONG TITLE
 General Description:
         This bill enacts and modifies provisions relating to wildland fire planning and cost
 recovery.
 Highlighted Provisions:
         This bill:
         < grants the Public Service Commission rulemaking authority to enact rules
 establishing procedures for the review and approval of a wildland fire protection
 plan;
         < requires a qualified utility and an electric cooperative to prepare and submit for
 approval a wildland fire protection plan;
         < specifies the information that is required to be included in a wildland fire protection
 plan;
         < requires the Public Service Commission to review and approve a wildland fire
 protection plan submitted by a qualified utility;
         < provides that a qualified utility may recover, through rates, the capital investments
 and expenses incurred to implement a wildland fire protection plan;
         < requires a qualified utility to annually report certain capital investments and
 expenses incurred for the implementation of a wildland fire protection plan to the
 Public Service Commission;
         < requires a governing authority of an electric cooperative to review and approve a
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 wildland fire protection plan submitted by an electric cooperative;
        < provides that a qualified utility or an electric cooperative with an electrical
 transmission fire protection plan are not considered to have negligently caused a
 wildland fire under certain circumstances;
        < modifies the standard of care for a right of action for injuries to trees;
        < specifies the liability provisions that apply for damages arising from a wildland fire;
 and
        < makes technical and conforming changes.
 Money Appropriated in this Bill:
        None
 Other Special Clauses:
        None
 Utah Code Sections Affected:
 AMENDS:
        65A-3-4, as repealed and reenacted by Laws of Utah 2012, Chapter 361
        78B-6-1002, as renumbered and amended by Laws of Utah 2008, Chapter 3
 ENACTS:
        54-24-101, Utah Code Annotated 1953
        54-24-102, Utah Code Annotated 1953
        54-24-103, Utah Code Annotated 1953
        54-24-201, Utah Code Annotated 1953
        54-24-202, Utah Code Annotated 1953
        54-24-203, Utah Code Annotated 1953
52
 Be it enacted by the Legislature of the state of Utah:
        Section 1. Section 54-24-101 is enacted to read:
          CHAPTER 24. WILDLAND FIRE PLANNING AND COST RECOVERY ACT
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                                        Part 1. General Provisions
        54-24-101. Title.
        This chapter is known as the "Wildland Fire Planning and Cost Recovery Act."
        Section 2. Section 54-24-102 is enacted to read:
        54-24-102. Definitions.
        As used in this chapter:
        (1) "Electric cooperative" means an electrical corporation that is a:
        (a) distribution electrical cooperative; or
        (b) wholesale electrical cooperative.
        (2) "Governing authority" means the same as that term is defined in Section 54-15-102.
        (3) "Qualified utility" means the same as that term is defined in Section 54-17-801.
        (4) "Wildland fire protection plan" means a plan submitted to the commission or
 governing authority in accordance with the requirements of this chapter.
        Section 3. Section 54-24-103 is enacted to read:
        54-24-103. Commission rulemaking authority.
        In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
 commission shall make rules to implement this chapter, including:
        (1) rules establishing procedures for the review and approval of a wildland fire
 protection plan;
        (2) rules establishing the procedures for the review and approval of annual
 expenditures for the implementation of a wildland fire protection plan; and
        (3) any other rules that the commission determines are necessary to protect the public
 interest and implement this chapter.
        Section 4. Section 54-24-201 is enacted to read:
                                   Part 2. Wildland Fire Protection Plans
        54-24-201. Wildland fire protection plan for a qualified utility.
        (1) A qualified utility shall prepare a wildland fire protection plan in accordance with
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 the requirements of this chapter.
         (2) A wildland fire protection plan under Subsection (1) shall include:
         (a) a description of areas within the service territory of the qualified utility that may be
 subject to a heightened risk of wildland fire;
         (b) a description of the procedures, standards, and time frames that the qualified utility
 will use to inspect and operate its infrastructure;
         (c) a description of the procedures and standards that the qualified utility will use to
 perform vegetation management;
         (d) a description of proposed modifications or upgrades to facilities and preventative
 programs that the qualified utility will implement to reduce the risk of its electric facilities
 initiating a wildland fire;
         (e) a description of procedures for de-energizing power lines and disabling reclosers to
 mitigate potential wildland fires taking into consideration:
         (i) the ability of the qualified utility to reasonably access the proposed power line to be
 de-energized;
         (ii) the balance of the risk of wildland fire with the need for continued supply of
 electricity to a community; and
         (iii) any potential impact to public safety, first responders, and health and
 communication infrastructure;
         (f) a description of the procedures the qualified utility intends to use to restore its
 electrical system in the event of a wildland fire;
         (g) a description of the costs for the implementation of the plan, including system
 improvements and upgrades;
         (h) a description of community outreach and public awareness efforts before and
 during a wildland fire season; and
         (i) a description of potential participation, if applicable, with state or local wildland fire
 protection plans.
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        (3) (a) A qualified utility shall submit the wildland fire protection plan described in this
 section to the commission:
        (i) on or before June 1, 2020; and
        (ii) on or before October 1 of every third year after calendar year 2020.
        (b) The commission shall:
        (i) review the plan submitted under Subsection (3)(a); and
        (ii) consider input from:
        (A) the State Division of Forestry, Fire, and State Lands created in Section 65A-1-4;
        (B) any other appropriate federal, state, or local entity that chooses to provide input;
 and
        (C) other interested persons who choose to provide input.
        (c) The commission shall approve a wildland fire protection plan submitted under
 Subsection (3)(a) if the plan:
        (i) is reasonable and in the public interest; and
        (ii) appropriately balances the costs of implementing the plan with the risk of a
 potential wildland fire.
        (4) No later than June 1, 2021, and each year after 2021, a qualified utility shall submit
 to the commission a report detailing the qualified utility's compliance with the qualified utility's
 wildland fire protection plan.
        Section 5. Section 54-24-202 is enacted to read:
        54-24-202. Cost recovery for wildland fire protection plan implementation.
        (1) A qualified utility shall recover in rates all prudently incurred investments and
 expenditures, including the costs of capital, made to implement an approved wildland fire
 protection plan.
        (2) A qualified utility shall file an annual report to the commission identifying the
 actual capital investments and expenses made in the prior calendar year and a forecast of the
 capital investments and expenses for the present year to implement a wildland fire protection
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 plan approved by the commission under Section 54-24-201.
         (3) The commission shall authorize the deferral and collection of the incremental
 revenue requirement for the capital investments and expenses:
         (a) to implement an approved wildland fire protection plan; and
         (b) not included in base rates.
         Section 6. Section 54-24-203 is enacted to read:
         54-24-203. Wildland fire protection plan for an electric cooperative.
         (1) An electric cooperative shall prepare a wildland fire protection plan in accordance
 with the requirements of this chapter.
         (2) A wildland fire protection plan under Subsection (1) shall include:
         (a) a description of areas within the service territory of the electric cooperative that
 may be subject to a heightened risk of wildland fire;
         (b) a description of the procedures, standards, and time frames that the electric
 cooperative will use to inspect and operate its infrastructure;
         (c) a description of the procedures and standards that the electric cooperative will use
 to perform vegetation management;
         (d) a description of proposed modifications or upgrades to facilities and preventative
 programs that the electric cooperative will implement to reduce the risk of its electric facilities
 initiating a wildland fire;
         (e) a description of procedures for de-energizing power lines and disabling reclosers to
 mitigate potential wildland fires, taking into consideration:
         (i) the ability of the electric cooperative to reasonably access the proposed power line
 to be de-energized;
         (ii) the balance of the risk of wildland fire with the need for continued supply of
 electricity to a community; and
         (iii) any potential impact to public safety, first responders, and health and
 communication infrastructure;
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        (f) a description of the procedures the electric cooperative intends to use to restore its
 electrical system in the event of a wildland fire; and
        (g) a description of potential consultation, if applicable, with state or local wildland fire
 protection plans.
        (3) (a) An electric cooperative shall submit the wildland fire protection plan described
 in this section to its governing authority:
        (i) on or before June 1, 2020; and
        (ii) on or before October 1 of every third year after calendar year 2020.
        (b) The governing authority shall:
        (i) review the plan submitted under Subsection (3)(a); and
        (ii) consider input from:
        (A) the Division of Forestry, Fire, and State Lands created in Section 65A-1-4;
        (B) any other appropriate federal, state, or local entity that chooses to provide input;
 and
        (C) other interested persons who choose to provide input.
        (c) The governing authority shall approve a wildland fire protection plan submitted
 under Subsection (3)(a) if the plan:
        (i) is reasonable and in the interest of the electric cooperative members; and
        (ii) appropriately balances the costs of implementing the plan with the risk of a
 potential wildland fire.
        (d) An electric cooperative shall file with the commission a wildland fire protection
 plan submitted and approved under this section.
        (4) An electric cooperative shall:
        (a) file with its governing authority an annual report detailing the electric cooperative's
 compliance with the wildland fire protection plan; and
        (b) file with the commission a copy of the annual compliance report described in
 Subsection (4)(a).
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        (5) The commission shall make available for public inspection:
        (a) a wildland fire protection plan filed under Subsection (3)(d); and
        (b) an annual compliance report filed under Subsection (4)(b).
        Section 7. Section 65A-3-4 is amended to read:
        65A-3-4. Liability for causing wildland fires.
        (1) As used in this section:
        (a) "Electric cooperative" means the same as that term is defined in Section 54-24-102.
        (b) "Electrical transmission wildland fire protection plan" means a wildland fire
 protection plan, as defined in Section 54-24-102, that is:
        (i) prepared and submitted by a qualified utility and approved as provided in Section
 54-24-201; or
        (ii) prepared and submitted by an electric cooperative and approved as provided in
 Section 54-24-203.
        (c) "Qualified utility" means the same as that term is defined in Section 54-17-801.
        [(1) A] (2) (a) Except as provided in Subsection (3), a person who negligently,
 recklessly, or intentionally causes or spreads a wildland fire shall be liable for the cost of
 suppressing that wildland fire, regardless of whether the fire begins on:
        [(a)] (i) private land;
        [(b)] (ii) land owned by the state;
        [(c)] (iii) federal land; or
        [(d)] (iv) tribal land.
        [(2)] (b) The conduct described in Subsection [(1)] (2)(a) includes any negligent,
 reckless, or intentional conduct, and is not limited to conduct described in Section 65A-3-2.
        (3) In an action under this section to recover for property damage resulting from a
 wildland fire or to recover the cost of fire suppression resulting from a wildland fire, a qualified
 utility or electric cooperative may not be considered to have negligently caused a wildland fire
 if:
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         (a) (i) the electrical transmission wildland fire protection plan of the qualified utility or
 electric cooperative identifies and addresses the cause of the wildland fire for fire mitigation
 purposes; and
         (ii) at the origin of the wildland fire, the qualified utility or electric cooperative has
 completed the fire mitigation work identified in the electrical transmission wildland fire
 protection plan, including:
         (A) inspection, maintenance, and repair activities;
         (B) modifications or upgrades to facilities or construction of new facilities;
         (C) vegetation management work; and
         (D) preventative programs; or
         (b) (i) the qualified utility or electric cooperative is denied or delayed access to a
 right-of-way on land owned by the state, a federal agency, or a tribal government after the
 qualified utility or electric cooperative requests access to the right-of-way to perform
 vegetation management or fire mitigation work in accordance with an electrical transmission
 wildland fire protection plan; and
         (ii) the electrical transmission wildland fire protection plan identifies and addresses the
 cause of the wildland fire for fire mitigation purposes.
         [(3)] (4) A person who incurs costs to suppress a wildland fire may bring an action
 under this section to recover those costs.
         (5) (a) A property owner who suffers damages resulting from a wildland fire may bring
 an action under this section to recover those damages.
         (b) An award for damages to real property resulting from a wildland fire, including the
 loss of vegetation, shall be the lesser of:
         (i) the cost to restore the real property to its pre-wildland fire condition; or
         (ii) the difference between:
         (A) the fair market value of the real property before the wildland fire; and
         (B) the fair market value of the real property after the wildland fire.
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        [(4)] (6) A person who suffers damage from a wildla