HB 267 — WILDFIRE UTILITY MITIGATION & LIABILITY ACT

the electric utility's situational awareness c e s k 23 program, including weather monitoring;

e a n b 24 C.

the procedures, standards and schedules that the u [ electric utility will use to inspect, maintain and operate its .233979.1 - 6 - HENRC/HB 267 transmission and distribution infrastructure;

e t 17 D.

the procedures and standardsstandards, thatwhich theshall electricmeet wor lexceed nnationally drecognized 18vegetation management standards, that the electric utility will use to perform vegetation management;

= = 19 a l E.

the proposed mitigation measures, modifications, i a e r 20 replacements and upgrades to facilities and preventive programs a t m m 21 that the electric utility will implement to reduce the risk of d r e 22 its electric facilities causing a wildfire, including pole and c e s k 23 right-of-way inspections;

e a n b 24 F.

how the electric utility will coordinate with u [ other electric utilities regarding any shared facilities;

.233242.1 - 6 - G.

how the electric utility will communicate with the public, other utilities and emergency e t 17 responders regarding power shutoffs;

and the electric utility's w l n d 18 procedures for restoring power upon the conclusion of a public = = 19 safety power shutoff;

a l i a e r 20 H.

the procedures that the electric utility will a t m m 21 use to restore its electrical system in the event of a d r e 22 wildfire;

c e s k 23 I.

the community outreach and public awareness e a n b 24 efforts that the electric utility will use when implementing a u [ public safety power shutoff;

.233979.1 - 7 - HENRC/HB 267 J.

the electric utility's emergency response procedures in the event of a wildfire, including procedures for coordination with emergency managers before and during an active wildfire;

and K.

procedures for coordination with first responders and government agencies and officials, including forest managers, wildland firefighters and local fire departments, during a wildfire." SECTION 5.

A new section of Chapter 62 NMSA 1978 is enacted to read:

"[NEW MATERIAL] COMPLIANCE REPORTS--CERTIFICATE OF COMPLIANCE--NOTICE OF NONCOMPLIANCE--RECOVERY ACTION.-- A.

Within one calendar year following the approval of a mitigation plan, and annually thereafter, an electric utility shall submit a compliance report to the commission detailing the electric utility's compliance with its approved e t 17 mitigation plan, including any modifications and updates made w l n d 18 to the mitigation plan.

= = 19 B.

No later than one hundred eighty days after the a l i a e r 20 submission of a compliance report, the commission, in a t m m 21 consultation with the forestry division of the department, d r e 22 shall determine whether the electric utility substantially c e s k 23 complied with the electric utility's mitigation plan during the e a n b 24 preceding year, and:

u [ (1) if the commission determines that the .233979.1 - 8 - HENRC/HB 267 electric utility is in substantial compliance, the commission shall issue a certificate of compliance to the electric utility;

or (2) if the commission determines that the electric utility is not in substantial compliance with its mitigation plan, the commission shall issue a notice of noncompliance to the electric utility that identifies the specific areas of noncompliance.

C.

Upon receiving a notice of noncompliance, an electric utility may undertake corrective action to come into compliance with its mitigation plan and, upon completing the corrective action, submit a report to the commission detailing the corrective action.

D.

Within sixty days of receiving a report of a corrective action from an electric utility, the commission shall determine whether the electric utility is in substantial e t 17 compliance following the corrective action.

w l n d 18 E.

If, after reviewing a corrective action report, = = 19 the commission finds that an electric utility remains out of a l i a e r 20 substantial compliance with the utility's mitigation plan, the a t m m 21 commission shall notify the electric utility of that finding d r e 22 and the electric utility may either undertake further c e s k 23 corrective action or seek judicial review pursuant to Section e a n b 24 39-3-1.1 NMSA 1978.

u [ F.

If the commission fails to make a determination .233979.1 - 9 - HENRC/HB 267 within a time period prescribed by this section, the electric utility shall be deemed to be in substantial compliance with its mitigation plan.

G.

The commission shall revoke a certificate of compliance when an electric utility fails to:

(1) take corrective action to come into compliance with a mitigation plan;

or (2) update a mitigation plan as requested by the commission.

Neither the procedurescommission thatnor the electricstate utilityshall willbe useliable tofor restoremonetary itsdamages electricalin systema inclaim based upon the eventcommission's issuance or denial of a wildfire;certificate of compliance.

theThe communitycommission outreachmay anddelegate publicauthority awarenessto effortsreview thatan the electric utilityutility's willcompliance usewith whena implementingmitigation aplan publicpursuant safetyto powerSection shutoff;62-19-9 NMSA 1978." SECTION 6.

J.A new section of Chapter 62 NMSA 1978 is e t 17 enacted to read:

thew electricl utility'sn emergencyd response18 procedures"[NEW inMATERIAL] thePOSTING eventOF ofMITIGATION aPLANS-- wildfire,= including= procedures19 forCONFIDENTIALITY.-- coordinationa withl emergencyi managersa before and during an e tr 1720 activeA. wildfire;

The commission shall post on the commission's a t m m 21 website and wmake lpublicly navailable an electric utility's d 18r K.e 22 current mitigation plan, compliance report and, as applicable, c e s k 23 certificate of compliance or notice of noncompliance;

proceduresprovided fore coordination with first = = 19 a ln respondersb and24 governmentthat agenciesthe andcommission officials,shall includingnot ipost aor emake rpublicly 20available forestu managers,[ wildlandany firefightersinformation anddesignated localas fireconfidential ain taccordance mwith m.233979.1 21- departments,10 during- aHENRC/HB wildfire."267 dthis rsection. e 22 SECTION 5.

A new section of Chapter 62 NMSA 1978 is c e s k 23 enacted to read:

e a n b 24 "[NEW MATERIAL] COMPLIANCE REPORTS--CERTIFICATE OF u [ COMPLIANCE--NOTICE OF NONCOMPLIANCE--RECOVERY ACTION.-- .233242.1 - 7 - A.

On or before June 1 of the calendar year following the approval of a mitigation plan, and on or before June 1 of each year thereafter, an electric utility shall submit a compliance report to the commission detailing the electric utility's compliance with its approved mitigation plan, including any modifications and updates made to the mitigation plan.

NoIf lateran thanelectric oneutility hundredincludes eightyconfidential daysinformation afterwith theits submissionmitigation ofplan aor compliance report, the commission,confidential ininformation consultationshall withbe themarked division,"CONFIDENTIAL shall– determineNOT whetherFOR PUBLIC RELEASE", and the electricconfidential utilityinformation substantiallyshall compliedbe withattached theas electrica utility'sseparable appendix to the mitigation plan duringor theannual precedingreport." year,SECTION and:7.

(1) if the commission determines that the electric utility is in substantial compliance, the commission shall issue a certificate of compliance to the electric utility;

or e t 17 (2) if the commission determines that the w l n d 18 electric utility is not in substantial compliance with its = = 19 a l mitigation plan, the commission shall issue a notice of i a e r 20 noncompliance to the electric utility that identifies the a t m m 21 specific areas of noncompliance.

d r e 22 C.

Upon receiving a notice of noncompliance, an c e s k 23 electric utility may undertake corrective action to come into e a n b 24 compliance with its mitigation plan and, upon completing the u [ corrective action, submit a report to the commission detailing .233242.1 - 8 - the corrective action.

D.

Within sixty days of receiving a report of a corrective action from an electric utility, the commission shall determine whether the electric utility is in substantial compliance following the corrective action.

E.

If, after reviewing a corrective action report, the commission finds that an electric utility remains out of substantial compliance with the utility's mitigation plan, the commission shall notify the electric utility of that finding and the electric utility may either undertake further corrective action or seek judicial review pursuant to Section 39-3-1.1 NMSA 1978.

F.

If the commission fails to make a determination within a time period prescribed by this section, the electric utility shall be deemed to be in substantial compliance with its mitigation plan.

e t 17 G.

The commission shall revoke a certificate of w l n d 18 compliance when an electric utility fails to:

= = 19 a l (1) take corrective action to come into i a e r 20 compliance with a mitigation plan;

or a t m m 21 (2) update a mitigation plan as requested by d r e 22 the commission.

c e s k 23 H.

Neither the commission nor the state shall be e a n b 24 liable for monetary damages in a claim based upon the u [ commission's issuance or denial of a certificate of .233242.1 - 9 - compliance." SECTION 6.

"[NEW MATERIAL] POSTING OF MITIGATION PLANS--PLAN CONFIDENTIALITY.--IMPLEMENTATION--PROPERTY ACCESS.-- A.

TheIf commissionan shallelectric postutility onrequires theaccess commission'sto websiteprivate, andstate makeor publiclylocal availablegovernment-owned anproperty electricto utility'simplement currentan approved mitigation plan, compliancethe reportelectric and,utility asshall applicable,submit certificatea ofwritten compliancerequest to access the property to the property owner through certified or noticereturn-receipt ofmail noncompliance;or electronic message e t 17 to an email address known to belong to the property owner.

providedIf thatw l n d 18 the commissionproperty shallowner does not postgrant or makedeny publiclyaccess availablewithin anythirty information= designated= as19 confidentialdays inof accordancesubmission withof thisthe section.request, the property owner shall be a l i a e r 20 deemed to have agreed to the request to access the property for a t m m 21 the limited purpose of performing work necessary to the d r e 22 approved mitigation plan.

c e s k 23 B.

Upon request by an electric utility, a local law e a n b 24 enforcement agency may provide personnel, equipment, traffic u [ control, public safety support or other reasonable assistance .233979.1 - 11 - HENRC/HB 267 necessary to carry out wildfire mitigation activities.

C.

An electric utility shall not be held liable in a civil action for damage to a property resulting from an action to implement a mitigation plan unless the electric utility intentionally or maliciously causes damage to a property." SECTION 8.

A new section of Chapter 62 NMSA 1978 is enacted to read:

"[NEW MATERIAL] COST RECOVERY.-- A.

As used in this section, "true-up" means to conduct an accounting reconciliation of the accruals and expenses for a business, project or program that replaces prior estimated figures with actual figures when the actual figures become available.

If the commission approves a mitigation plan for an electric public utility includesregulated confidentialby informationthe withcommission itspursuant mitigatione plant or17 complianceto report, the confidentialPublic informationUtility Act, the commission shall beconcurrently markedw "CONFIDENTIALl –n NOTd FOR18 PUBLICapprove RELEASE",a andpermanent themitigation confidentialplan informationcost shallrecovery berider eto t= 17= attached19 asallow athe separableelectric appendixutility to therecover mitigationreasonably planincurred ora w l ni da 18e annualr report."20 =investments =and 19expenditures, including the costs of capital, a lt SECTIONm 7.m 21 made to implement the mitigation plan;

Aprovided newthat sectionthe ofd Chapterr 62e NMSA22 1978mitigation plan cost recovery rider is isubject to change based c e s k 23 on a subsequent truing-up of the costs of capital investments e ra 20n enactedb to24 read:and expenses.

The commission shall annually true-up a tu m[ mmitigation 21plan "[NEWcost MATERIAL]recovery MITIGATIONrider PLANupon IMPLEMENTATION--PROPERTYsubmission dof rthe e.233979.1 22- ACCESS.--12 c- eHENRC/HB s267 kelectric 23utility's A.compliance reports pursuant to Section 5 of the Wildfire Utility Mitigation and Liability Act.

If an electric utility requires access to e a n b 24 private, state or local government-owned property to implement u [ an approved mitigation plan, the electric utility shall submit .233242.1 - 10 - a written request to access the property to the property owner through post-prepaid mail or electronic message to an email address known to belong to the property owner.

If the property owner does not grant or deny access within thirty days of submission of the request, the property owner shall be deemed to have agreed to the request to access the property for the limited purpose of performing work necessary to the approved mitigation plan.

B.

Upon request by an electric utility, a local law enforcement agency may provide personnel, equipment, traffic control, public safety support or other reasonable assistance necessary to carry out wildfire mitigation activities.

AnThe electriccommission utilitymay shallexpressly notdisallow bespecific heldcosts liablefrom inbeing aeligible civil action for damagerecovery toby aan propertyelectric resultingutility fromonly anupon actiona towritten implementfinding, asupported mitigationby plansubstantial unlessevidence, that the electriccosts utilitywere intentionallyimprudently incurred or maliciouslynot causesreasonably damagerelated to aimplementation eof tthe 17approved property."mitigation wplan. l n d 18 SECTION 8.

AD. new section of Chapter 62 NMSA 1978 is = = 19 a l enacted to read:

iCosts aincurred eby ran 20electric "[NEWutility MATERIAL]resulting COSTfrom RECOVERY.--compliance awith tan mapproved mmitigation 21plan A.are deemed reasonable and recoverable unless expressly disallowed by the commission pursuant to Subsection C of this section." SECTION 9.

AsA usednew insection this section, "true-up" means to d r e 22 conduct an accounting reconciliation of theChapter accruals62 andNMSA c1978 eis senacted kto 23read: expenses for a business, project or program that replaces prior e a n b 24 estimated figures with actual figures when the actual figures u [ become available.

.233242.1"[NEW -MATERIAL] 11QUALIFIED -WILDFIRE B.CIVIL ACTIONS-- LIMITATIONS ON LIABILITY AND DAMAGES.-- A.

IfIn the commission approves a mitigationqualified planwildfire forcivil anaction, electricthere publice utilityt regulated17 by the commission pursuant to the Public Utility Act, the commission shall concurrentlybe approve a permanentrebuttable mitigationpresumption planthat costa recoverycertificate riderof tow allowl then electricd utility18 tocompliance recoveris reasonablyproof incurredof investmentsreasonable and expenditures,prudent includingpreparation thefor, costs= of= capital,19 madeand tomitigation implementof, thewildfire mitigationrisk. plan;

providedA thatplaintiff themay mitigationrebut planthis costa recoveryl rideri isa subjecte tor change20 basedpresumption ononly upon proof by clear and convincing evidence a subsequentt truing-upm ofm 21 through an origin and cause investigation conducted by a d r e 22 federal, state or tribal agency pursuant to the costsnational ofc capitale investmentss andk expenses.23 wildfire coordinating group wildfire investigation standards e a n b 24 that:

Theu commission[ shall(1) annually true-up a mitigation plan cost recovery rider upon submission of the electric utility's complianceoperations, reports.233979.1 pursuant- to13 Section- 5HENRC/HB of267 thefacilities Wildfireor Utilityequipment Mitigationcaused andthe Liabilityfire; Act.

C.

The commission may expressly disallow specific costs from being eligible for recovery by an electric utility through a written order.

e t 17 D.

Costs incurred by an electric utility resulting w l n d 18 from compliance with an approved mitigation plan are deemed = = 19 a l reasonable and recoverable unless expressly disallowed by the i a e r 20 commission pursuant to Subsection C of this section." a t m m 21 SECTION 9.

A new section of Chapter 62 NMSA 1978 is d r e 22 enacted to read:

c e s k 23 "[NEW MATERIAL] QUALIFIED WILDFIRE CIVIL ACTIONS-- e a n b 24 LIMITATIONS ON LIABILITY AND DAMAGES.-- u [ A.

In a qualified wildfire civil action, there .233242.1 - 12 - shall be a rebuttable presumption that a certificate of compliance is proof of reasonable and prudent preparation for, and mitigation of, wildfire risk.

A plaintiff may rebut this presumption only upon proof by clear and convincing evidence through an origin and cause investigation conducted by a federal, state or tribal agency pursuant to the national wildfire coordinating group wildfire investigation standards that:

(1) the electric utility's operations, facilities or equipment caused the fire;

(3) the electric utility's failure to comply with its mitgationmitigation plan was the actual and proximate cause of the plaintiff's claimed damages;

(4) the electric utility was not prevented e t 17 from complying with its plan by a federal agency, property w l n d 18 owner, customer or member of the electric utility or local, = = 19 a l state or tribal government;

and i a e r 20 (5) the electric utility intentionally or a t m m 21 maliciously disregarded the risk of wildfire posed by its d r e 22 operations, facilities or equipment.

c e s k 23 B.

In a qualified wildfire civil action, a monetary e a n b 24 award for damages may only be awarded as follows:

u [ (1) for an economic loss, the award shall be .233242.1e -t 1317 - the lesser of:

w l n d 18 (a) the cost to restore damaged property = = 19 to the property's condition before the wildfire;

or a l i a e r 20 (b) the difference between the fair a t m m 21 market value of the property before the wildfire and the fair d r e 22 market value of the property after the wildfire without c e s k 23 restoration;

and e a n b 24 (2) for a noneconomic loss, a monetary damage u [ award shall not be greater than five hundred thousand dollars .233979.1 - 14 - HENRC/HB 267 ($500,000) per plaintiff and may only be awarded for a physical injury that, as established by the competent testimony of a health care provider:

or e t 17 (b) resulted in death.

w l n d 18 C.

When an origin and cause investigation conducted = = 19 a l pursuant to the national wildfire coordinating group wildfire i a e r 20 investigation standards determines that a wildfire was caused a t m m 21 by vegetation from outside an electric utility's easement, d r e 22 property or right of way,way coming into contact with the electric utility's equipment, the electric utility is not liable in c e s k 23 a civil action for damages resulting from the fire, unless:

e a n b 24 (1) the owner of the property on which the ue [t 17 vegetation originated provided the electric utility with a .233242.1w -l 14n -d 18 written demand to remove the vegetation prior to the wildfire's = = 19 ignition and the electric utility unreasonably refused to a l i a e r 20 comply with the written demand;

or a t m m 21 (2) a plaintiff proves, by clear and d r e 22 convincing evidence, that:

c e s k 23 (a) the electric utility's equipment, e a n b 24 facilities or operations substantially contributed to the fire;

u [ (b) the electric utility failed to .233979.1 - 15 - HENRC/HB 267 substantially comply with its mitigation plan with respect to maintenance of the easement, property or right of way;

(d) the electric utility was not denied the ability to comply with its mitigation plan by a federal agency, property owner, customer or member of the electric e t 17 utility or local, state or tribal government;

and w l n d 18 (e) the electric utility intentionally = = 19 a l or maliciously disregarded the risk of wildfire posed by its i a e r 20 operations, facilities or equipment.

a t m m 21 D.

In a qualified wildfire civil action against an d r e 22 electric utility owned or operated by the state or a political c e s k 23 subdivision of the state, the procedural provisions and the e a n b 24 damages limitations of the Tort Claims Act shall apply.

ue [t 17 E.

Attorney fees and exemplary or punitive damages .233242.1w -l 15n -d 18 shall not be awarded in a qualified wildfire civil action.

= = 19 F.

In a qualified wildfire civil action, an a l i a e r 20 electric utility shall not be liable for implementing or not a t m m 21 implementing a public safety power shutoff when the electric d r e 22 utility acts in conformity with an approved mitigation plan or c e s k 23 acts in good faith based on real-time wildfire risk conditions, e a n b 24 even if such action was not specifically enumerated in the u [ approved mitigation plan.

.233979.1 - 16 - HENRC/HB 267 G.

"[NEW MATERIAL] WILDFIRE MITIGATION GRANTS--ELIGIBILITY.-- e t 17 A.

As used in this section, "cooperative" means a w l n d 18 cooperative nonprofit membership corporation organized pursuant = = 19 a l to the Rural Electric Cooperative Act.

i a e r 20 B.

The divisiondepartment may provide grants to cooperatives a t m m 21 to assist in the implementation of mitigation e t 17 plans.

dw rl en 22d 18 C.

To be eligible for a grant, a cooperative shall c= e= s19 k 23 have a mitigation plan that has been approved by the ea l i a ne br 2420 commission.

A cooperative shall not receive more than one ua [t m m 21 grant per year, and a single grant shall not be greater than .233242.1d -r 16e -22 one million dollars ($1,000,000).

c e s k 23 D.

The divisiondepartment shall promulgate rules to e a n b 24 establish the criteria, process and application requirements u [ for grants;

.233979.1 - 17 - HENRC/HB 267 (1) grants shall be prioritized to achieve the greatest anticipated mitigation of wildfire risk;

(2) prior to approving a grant, the divisiondepartment shall make a written determination that the incidental benefit to the cooperative is outweighed by the benefits to the state resulting from the reduction in fire in wildfires within the state;

e t 17 "[NEW MATERIAL] RULEMAKING.--The commission may promulgate w l n d 18 rules necessary to implement the Wildfire Utility Mitigation = = 19 a l and Liability Act." i a e r 20 SECTION 13.

Section 30-32-4 NMSA 1978 (being Laws 1882, ae t m17 m 21 Chapter 61, Section 7, as amended) is amended to read:

dw rl en 22d 18 "30-32-4.

DAMAGES TO PERSON INJURED.--Except for an c= e= s19 ka 23l electric utility operating pursuant to a wildfire mitigation ei a ne br 2420 plan approved by the public regulation commission pursuant to ua [t m m 21 the Wildfire Utility Mitigation and Liability Act, if a person .233242.1d -r 17e -22 sets on fire any woods, marshes or prairies, whether the c e s k 23 property is the person's own or not, [so as thereby to e a n b 24 occasion] and causes damage to another person or that other u [ person's property, the [person shall make satisfaction in .233979.1 - 18 - HENRC/HB 267 double damages to the party injured to be recovered by civil action] responsible party shall pay the injured party twice the amount of damages, recoverable through a civil action, unless the person is conducting a prescribed burn pursuant to the Prescribed Burning Act." SECTION 14.

Those] Excepting qualified wildfire civil actions brought against an electric utility for damages resulting from wildfire pursuant to the Wildfire Utility Mitigation and Liability Act, actions founded upon e t 17 accounts and unwritten contracts, [those] actions brought for w l n d 18 injuries to property or for the conversion of personal property = = 19 a l or for relief upon the ground of fraud and all other actions i a e r 20 not [herein] otherwise provided for in Chapter 37, Article 1 ae t m17 m 21 NMSA 1978 and specified shall be brought within four years." dw rl en 22d 18 SECTION 15.

APPROPRIATION.--One million five hundred c= e= s19 k 23 thousand dollars ($1,500,000) is appropriated from the general ea l i a ne br 2420 fund to the public regulation commission for expenditure in ua [t m m 21 fiscal year 2027 to purchase equipment and contract for .233242.1d -r 18e -22 services to carry out the public regulation commission's duties c e s k 23 pursuant to the Wildfire Utility Mitigation and Liability Act.

e a n b 24 Any unexpended balance remaining at the end of fiscal year 2027 u [ shall revert to the general fund.

.233979.1 - 19 - HENRC/HB 267 SECTION 16.

APPROPRIATION.--Seven hundred fifty thousand dollars ($750,000) is appropriated from the general fund to the forestry division of the energy, minerals and natural resources department for expenditure in fiscal year 2027 to purchase equipment and contract for services necessary to review and consult on mitigation plans submitted pursuant to the Wildfire Utility Mitigation and Liability Act.

SECTION- 16.20 - 12 14 16 e t 17 w l n d 18 = = 19 a l i a e r 20 a t m m 21 d r e 22 c e s k 23 e a n b 24 u [ .233979.1

APPROPRIATION.--Ten million dollars ($10,000,000) is appropriated from the general fund to the forestry division of the energy, minerals and natural resources department for expenditure in fiscal years 2027 and 2028 to provide grants to cooperative nonprofit membership corporations organized pursuant to the Rural Electric Cooperative Act pursuant to Section 11 of the Wildfire Utility Mitigation and Liability Act.

Any unexpended balance remaining at the end of fiscal year 2028 shall revert to the general fund.

SECTION 17.

APPROPRIATION.--Seven hundred fifty thousand dollars ($750,000) is appropriated from the general fund to the forestry division of the energy, minerals and natural resources e t 17 department for expenditure in fiscal year 2027 to purchase w l n d 18 equipment and contract for services to carry out the division's = = 19 a l duties pursuant to the Wildfire Utility Mitigation and i a e r 20 Liability Act.

Any unexpended balance remaining at the end of a t m m 21 fiscal year 2027 shall revert to the general fund.

d r e 22 SECTION 18.

EFFECTIVE DATE.-- c e s k 23 A.

The effective date of the provisions of Section e a n b 24 9 of this act is January 1, 2027.

u [ B.

The effective date of the provisions of Sections .233242.1 - 19 - 1 through 8 and 10 through 17 of this act is July 1, 2026.

- 20 - 4 6 8 10 12 14 16 e t 17 w l n d 18 = = 19 a l i a e r 20 a t m m 21 d r e 22 c e s k 23 e a n b 24 u [ .233242.1