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Senate Engrossed House Bill
technical correction; electricity; power authority (now: wildfire mitigation planning; utilities; approval) |
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State of Arizona House of Representatives Fifty-seventh Legislature First Regular Session 2025
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CHAPTER 167
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HOUSE BILL 2201 |
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AN ACT
Amending title 30, Arizona Revised Statutes, by adding chapter 7; amending title 37, chapter 9, article 1, Arizona Revised Statutes, by adding section 37-1311; amending title 40, Arizona Revised Statutes, by adding chapter 8; relating to wildfire mitigation.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 30, Arizona Revised Statutes, is amended by adding chapter 7, to read:
CHAPTER 7
WILDFIRE MITIGATION PLANNING
ARTICLE 1. GENERAL PROVISIONS
30-901. Definitions
In this chapter, unless the context otherwise requires:
1. "Attachor" means any cable television system or provider of telecommunications or broadband communication services that owns or operates equipment that is attached to a pole, duct or conduit or that is otherwise located within a right-of-way that is owned or controlled by a public power entity, provided that the attaching entity is a current party to and in compliance with an attachment agreement with the public power entity.
2. "Electric Utility" has the same meaning prescribed in section 40-1301.
3. "governing body" means the governing body of a public power entity.
4. "Public power entity" means any municipal corporation or political subdivision that owns and operates facilities that generate, transmit or distribute electric energy for sale to retail customers in this state.
5. "Wildfire" means any unwanted, unplanned or uncontrolled fire that ignites vegetation within a wildland or natural area, including:
(a) Forests.
(b) Grasslands.
(c) Prairies.
(d) any areas that interface between wildland or natural and urban areas.
6. "Wildfire mitigation plan" means a plan that is submitted to the governing body in accordance with this chapter.
30-902. Cause of action; exclusive means of recovery; legal duty
A. This chapter does not establish a new cause of action. if there is a conflict between this chapter and any other state law, This chapter controls.
B. Except as otherwise agreed to in writing or established by federal law, this chapter establishes the exclusive means of recovery from a public power entity for claims or damages that result from wildfires.
C. This chapter does not establish any additional legal duty that supports any claim that would not otherwise already exist.
D. In any cause of action against a parent, subsidiary or other corporate affiliate of a public power entity that is RELATED to a wildfire, that parent, subsidiary or other corporate affiliate of the public power entity shall be treated the same as and considered equivalent to a public power entity for the purposes of section 30-904.
E. In any cause of action against a public power entity that is RELATED to a wildfire, an attachor shall be considered to be a public power entity and to be covered by the public power entity's wildfire mitigation plan for the purposes of section 30-904 with respect to any liability that may be alleged to have arisen out of the attachor's equipment.
30-903. Wildfire mitigation plan
A. Except as provided in subsection E of this section, a public power entity shall prepare and submit a wildfire mitigation plan to the governing body for review and approval. the public power entity may use the submission as an update to the last approved wildfire mitigation plan. the governing body shall adopt a wildfire mitigation plan On or before May 1, 2026 and every even-numbered year thereafter unless the governing body orders otherwise.
B. The governing body shall review the submitted wildfire mitigation plan to ensure that the wildfire mitigation plan:
1. Complies with this chapter and all applicable rules and regulations.
2. Is reasonable.
3. Is in the public interest.
C. The wildfire mitigation plan is deemed approved by the governing body during the pendency of any judicial action that seeks review of the governing body's approval or rejection of the wildfire mitigation plan or any portion of the wildfire mitigation plan.
D. Except as provided in subsection E of this section, a public power entity shall submit the approved wildfire mitigation plan to the state forester for further review and approval as prescribed in section 37-1311.
E. A public power entity with fewer than forty thousand meters in this state as of January 1, 2025 may prepare and submit a wildfire mitigation plan for review and approval to both the public power entity's governing body and the state forester as prescribed in subsections A and D of this section. If the public power entity with fewer than forty thousand meters in this state as of January 1, 2025 does not submit a wildfire mitigation plan for review and approval to both the governing body pursuant to this section and the state forester pursuant to section 37-1311, this chapter does not apply to that public power entity.
30-904. Liability for causing wildfires; severability
A. for any cause of action for negligence against a public power entity that is RELATED to a wildfire, A public power entity that acts in compliance with a wildfire mitigation plan that is approved pursuant to sections 30-903 and 37-1311 is deemed to meet the standard of care for a reasonably prudent public power entity. A party that asserts a cause of action shall prove that a failure to comply with the approved wildfire mitigation plan was a proximate cause of any loss, injury or other harm alleged.
B. Notwithstanding subsection A of this section, a public power entity that engages in wilful, intentional or reckless misconduct that causes a wildfire is deemed to not meet the standard of care for a reasonably prudent public power entity. A failure to comply with an approved wildfire mitigation plan does not constitute negligence per se. A public power entity's or electric utility's wildfire mitigation plan shall not be admissible as evidence against another public power entity or electric utility in a civil action that arose out of a wildfire.
C. A public power entity shall not be apportioned any proportion of fault for the ignition of a wildfire from sources that are outside of the public power entity's control, including lightning strikes or actions by third parties.
D. A public power entity shall not be apportioned any proportion of fault for vegetation or other wildfire risks outside of the public power entity's right-of-way, lease or other property rights or areas in which the public power entity has been delayed in accessing or denied access to for purposes of performing vegetation management if the delay or denial is outside of the public power entity's reasonable control.
E. A claim for condemnation or inverse condemnation shall not exist against a public power entity related to wildfires.
F. If any provision of this chapter or the public power entity's application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter that can be given effect without the invalid provision or application and to this end the provisions of this chapter are severable.
Sec. 2. Title 37, chapter 9, article 1, Arizona Revised Statutes, is amended by adding section 37-1311, to read:
37-1311. Wildfire mitigation plan; hearing; rules; fees; definitions
A. The state forester shall review and approve a submitted wildfire mitigation plan if the state forester finds that the wildfire mitigation plan:
1. Complies with title 30, chapter 7, article 1 or title 40, chapter 8, article 1 and any other applicable rules.
2. Is reasonable considering the public power entity's or electric utility's size and resources.
3. Is in the public interest.
4. Meets the requirements of subsection H of this section.
5. Is designed to meet the specific conditions and risk of the public power entity's or electric utility's service area in which the public power entity or the electric utility operates.
B. The state forester shall provide public notice and an opportunity for public comment on a submitted wildfire mitigation plan. The state forester shall publish the notice on the Arizona department of forestry and fire management's website and in the Arizona administrative register.
C. Within fourteen days after RECEIVING a submitted wildfire mitigation plan, the state forester shall:
1. Identify the counties and CITIES and towns that are located within the geographic region as described in the public power entity's or electric utility's wildfire mitigation plan.
2. Establish the time period and instructions for the affected counties and cities and towns to provide public comment.
3. Provide the information prescribed in paragraphs 1 and 2 of this subsection to the public power entity or electric utility.
D. Within ten days after receipt of the information prescribed in subsection C of this section, the public power entity or electric utility shall provide written notice to the identified counties and cities and towns of the opportunity to provide comment on the wildfire mitigation plan.
E. Within forty-five days after receipt of any wildfire mitigation plan, the state forester shall hold a public meeting to solicit comments on any proposed wildfire mitigation plan. The state forester shall provide for remote attendance at the public meeting using telephonic or video conferencing.
F. The state FORESTER MAY request additional information or request modification to the submitted wildfire mitigation plan within one hundred twenty days after the initial receipt of the wildfire mitigation plan by providing written notice to the public power entity or electric utility. If the state forester does not request additional information or a modification to the wildfire mitigation plan, the wildfire mitigation plan is deemed administratively approved after the one hundred twenty-day review period.
G. Within ninety days after receipt of the notice prescribed in subsection F of this section, the public power entity or electric utility shall respond to the state forester's request for information and, if necessary, may revise the wildfire mitigation plan. The state forester shall have sixty days after receipt of the responses or a revised wildfire mitigation plan, whichever is later, to consider the approval or denial of the wildfire mitigation plan. If the state forester does not request further additional information or a modification to the wildfire mitigation plan, the wildfire mitigation plan is deemed administratively approved at the expiration of sixty days. The wildfire mitigation plan is deemed approved during the pendency of any judicial action pursuant to title 12, chapter 7, article 6 that seeks review of the state forester's approval or denial of the wildfire mitigation plan or any portion of the wildfire mitigation plan.
H. The wildfire mitigation plan shall do the following:
1. Identify Preventive actions, protective equipment and monitoring programs that the public power entity or electric utility will carry out, install, repair, replace or implement to minimize the risk of a wildfire.
2. Include:
(a) A description of areas within the geographic region where the public power entity's or electric utility's facilities may be subject to a heightened risk of wildfire.
(b) A description of the procedures, standards and time frames that the public power entity or electric utility will use to inspect and operate the public power entity's or electric utility's infrastructure to mitigate the risk of wildfires.
(c) A description of the key individuals or position titles of those persons who are responsible for implementing the wildfire mitigation plan.
(d) A description of the procedures for deenergizing power lines and disabling reclosers to mitigate potential wildfires or provide a public safety power shut off plan.
(e) A description of the procedures, standards and time frames that the public power entity or electric utility will use to carry out vegetation management.
(f) A summary of the procedures the public power entity or electric utility intends to use to restore the public power entity's or electric utility's electrical system in the event of a wildfire.
(g) A description of community outreach and public awareness efforts.
(h) A description of potential participation, if applicable, with state or local wildfire protection efforts.
(i) A description of how the public power entity or electric utility will monitor compliance with the wildfire mitigation plan.
I. A public power entity or electric utility may reference procedures and standards that are not specifically enumerated in the wildfire mitigation plan in lieu of the requirements prescribed in subsection H of this section. Referenced material shall be included as attachments to the wildfire mitigation plan submission.
K. The state forester may adopt rules to implement this section.
L. Any action by the state forester pursuant to this section and any comments on the wildfire mitigation plan provided by any county, city, town or other governmental entity pursuant to this section are the exercise of an administrative function involving the determination of fundamental governmental policy as prescribed in SECTION 12-820.01.
M. The state forester may charge reasonable fees to public power entities and electric utilities for the review and approval of wildfire mitigation plans as prescribed in this section. In establishing the fees, the state forester may consider factors such as the time and materials necessary to review the wildfire mitigation plans with consideration given to the relative size, resources and service territory complexity of the public power entity or electric utility submitting a wildfire mitigation plan.
N. For the purposes of this SECTION:
1. "Electric utility" has the same meaning prescribed in sections 30-901 and 40-1301.
2. "Public power entity" has the same meaning prescribed in sections 30-901 and 40-1301.
3. "Public safety power shut off" means the intentional temporary shut off of power during certain weather or environmental conditions to reduce the risk of wildfire.
4. "Wildfire" has the same meaning prescribed in sections 30-901 and 40-1301.
5. "Wildfire mitigation plan" has the same meaning prescribed in section 30-901 or 40-1301.
Sec. 3. Title 40, Arizona Revised Statutes, is amended by adding chapter 8, to read:
CHAPTER 8
WILDFIRE MITIGATION PLANNING
ARTICLE 1. GENERAL PROVISIONS
40-1301. Definitions
In this chapter, unless the context otherwise requires:
1. "attachor" means any cable television system or provider of telecommunications or broadband communication services that owns or operates equipment that is attached to a pole, duct or conduit or that is otherwise located within a right-of-way that is owned or controlled by an electric utility, provided that the attaching entity is a current party to and in compliance with an attachment agreement with the electric utility.
2. "electric utility":
(a) means:
(i) any person, business organization, public service corporation, electric cooperative or other legal entity that owns and operates facilities for the generation, transmission or distribution of electric energy for sale to retail customers in this state.
(ii) any generation and transmission cooperative operating in this state.
(b) does not include a public power entity.
3. "public power entity" means a public power entity as defined in section 30-901.
4. "wildfire" means any unwanted, unplanned or uncontrolled fire that ignites vegetation within a wildland or natural area, including:
(a) forests.
(b) grasslands.
(c) prairies.
(d) any areas that interface between wildland or natural and urban areas.
5. "wildfire mitigation plan" means a plan that is submitted to the state forester in accordance with this chapter and section 37-1311.
40-1302. Cause of action; exclusive means of recovery; legal duty
A. This chapter does not ESTABLISH a new cause of action. if there is a conflict between this chapter and any other state law, This chapter controls.
B. Except as otherwise agreed to in writing or established by federal law, this chapter establishes the exclusive means of recovery from an electric utility for claims or damages that result from wildfires.
C. This chapter does not ESTABLISH any additional legal duty that supports any claim that would not otherwise already exist.
D. In any cause of action against a parent, subsidiary or other corporate affiliate of an electric utility that is RELATED to a wildfire, that parent, subsidiary or other corporate affiliate of the electric utility shall be treated the same as and considered equivalent to an electric utility for the purposes of section 40-1304.
E. In any cause of action against an electric utility that is RELATED to a wildfire, any attachor shall be considered to be an electric utility and to be covered by the electric utility's wildfire mitigation plan for the purposes of section 40-1304 with respect to any liability that may be alleged to have arisen out of the attachor's equipment.
40-1303. Wildfire mitigation plan
a. Except as provided in subsection C of this section, an electric utility shall prepare and submit a wildfire mitigation plan to the state forester for review and approval as prescribed in section 37-1311. the electric utility may use the submission as an update to the last approved wildfire mitigation plan. The electric utility shall submit the wildfire mitigation plan to the state forester on or before May 1, 2026 and every even-numbered year thereafter.
B. any action By the state forester that approves a wildfire mitigation plan is not considered approval for recovery of the electric utility's costs necessary to implement the wildfire mitigation plan through rates for service charged to the electric utility's customers.
C. An electric utility that is an electric cooperative with fewer than forty thousand meters in this state as of January 1, 2025 may prepare and submit a wildfire mitigation plan for review and approval to the state forester in accordance with subsection A of this section. An electric utility that is an electric cooperative with forty thousand or more meters in this state as of January 1, 2025 shall prepare a wildfire mitigation plan as prescribed in section 37-1311, subsection H and may submit the wildfire mitigation plan to the state forester as prescribed in subsection A of this section.
D. If an electric utility that is an electric cooperative does not submit a wildfire mitigation plan to the state forester for review and approval pursuant to section 37-1311, this chapter does not apply to that electric utility.
40-1304. Liability for causing wildfires; severability
A. For any cause of action for negligence against an electric utility that is RELATED to a wildfire, An electric utility that acts in compliance with the approved wildfire mitigation plan is deemed to meet the standard of care for a reasonably prudent electric utility. A party that asserts a cause of action for negligence shall prove that a failure to comply with the approved wildfire mitigation plan was a proximate cause of any loss, injury or other harm alleged.
B. Notwithstanding subsection A of this section, an electric utility that engages in wilful, intentional or reckless misconduct that causes a wildfire is not deemed to meet the standard of care for a reasonably prudent electric utility. A failure to comply with an approved wildfire mitigation plan does not constitute negligence per se. A public power entity's or electric utility's wildfire mitigation plan shall not be admissible as evidence against another public power entity or electric utility in a civil action that arose out of a wildfire.
C. An electric utility shall not be apportioned any proportion of fault for the ignition of a wildfire from sources that are outside of the electric utility's control, including lightning strikes or actions by third parties.
D. An electric utility shall not be apportioned any proportion of fault for vegetation or other wildfire risks outside of the electric utility's right-of-way, lease or other property rights or areas in which the electric utility has been delayed in accessing or denied access to for purposes of performing vegetation management if the delay or denial is outside of the electric utility's reasonable control.
E. A claim for condemnation or inverse condemnation shall not exist against an electric utility related to wildfires.
F. In an action against an electric utility to recover any damages that result from a wildfire, neither exemplary nor punitive damages of any kind may be recovered, only provided, however, that after it has been established that an electric utility, which is not an electric cooperative, is liable for personal injury or bodily harm that results from a wildfire, such damages may be sought if the Plaintiff proves by clear and convincing evidence that the defendant electric utility's conduct was both:
1. Outrageous, oppressive or intolerable.
2. Consciously pursued knowingly or with intentional disregard that the conduct created a substantial risk of significant physical injury to others.
G. If any provision of this chapter or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter that can be given effect without the invalid provision or application and to this end the provisions of this chapter are severable.
Sec. 4. Exemption from rulemaking
Notwithstanding any other law, the Arizona Department of Forestry and Fire Management is exempt from the rulemaking requirements of title 41, chapter 6, Arizona Revised Statutes, for one year after the effective date of this act.
APPROVED BY THE GOVERNOR MAY 12, 2025.
FILED IN THE OFFICE OF THE SECRETARY OF STATE MAY 12, 2025.