Chapter 182

182.70(3)(a)2. 2. The company may not exercise the authority granted in subd. 1. on that part of the Eagle river and lakes lying between the point where the Eagle River enters Cranberry Lake, in section 31, township 40 north, range 11 east, and the Wisconsin River.

182.70(3)(b) (b)

182.70(3)(b)1. 1. All franchises, other than corporate franchises, and all riparian rights and rights of flowage acquired by purchase or grant by any person or by any corporation organized to improve the navigation of the Wisconsin or Tomahawk river, or any of their tributaries may be assigned to the company.

182.70(3)(b)2. 2. Subdivision 1. shall not amend or repeal chapter 532, laws of 1887, chapter 252, laws of 1889, chapter 483, laws of 1905, chapter 26, laws of 1903, or any amendment to those chapters. The company may not exercise eminent domain over any property used under those chapters, nor any other property devoted to public uses except as authorized in pars. (c) and (f).

182.70(3)(c) (c) The dam authorized by chapter 532, laws of 1887, may be raised, or a new dam or dams may be constructed and maintained, in the Eagle River between Long and Cranberry lakes in townships 39 and 40 north, range 11 east, to raise the water in Long Lake 6 inches higher than the high water mark established by the dam authorized by chapter 532, laws of 1887. Between May 1 and the succeeding November 1 the waters shall not be drawn down in Long Lake more than 18 inches below the high water mark. The company shall maintain the navigability of Eagle River between Long and Cranberry lakes for boats up to 50 feet in length with 12-foot beam and drawing 5 feet of water. If the construction, maintenance or operation of the new dam or dams requires the removal of the dam maintained under chapter 532, laws of 1887, or impairs the use of the dam or its appurtenances as a bridge across the Eagle River, the company shall either:

182.70(3)(c)1. 1. Provide a suitable bridge for H 15 loading, as provided in the standard specifications for highway bridges, adopted by the American association of state highway and transportation officials (1977), with suitable approaches, for safe and convenient passage over the new dam, or if more than one dam is built, over the dam nearest to the dam maintained under chapter 532, laws of 1887; or

182.70(3)(c)2. 2. At its election provide a suitable new bridge and approaches across the river at a point that will conveniently connect with the highway crossing the river.

182.70(3)(d) (d) The company may collect uniform tolls for the passage of boats over the dam the company builds under par. (c), proportioned to the size of the boat. The total fees collected may not exceed the cost of the care, maintenance and operation of the means of passage.

182.70(3)(e) (e) The company may acquire by condemnation any property, interest in property or other right necessary to create, maintain or operate any reservoir, dam or other improvement, if the property cannot be purchased at an agreed price.

182.70(3)(f) (f) The commission shall appraise the damage caused by a taking or overflow of state lands occurring under this section. The company shall pay the amount appraised to the state treasury.

182.70(4) (4) Private remedies. Any owner whose premises or access to the premises are injured by being divided, surrounded by water, flooded or waterlogged, or whose natural drainage is destroyed or injured by any dam or other construction built or operated by the company, may sue for damages or an injunction in the circuit court for the county where some part of the damaged lands are located. The injured party may choose a trial by jury.

182.70(5) (5) Tolls.

182.70(5)(a) (a) If the company improves any navigable tributary of the Wisconsin River, except that part of the Eagle River designated in sub. (3) (a) 2., or acquires the improvements or control of the improvements of any river improvement company already operating on these tributaries, and operates the works to allow the driving of logs and other floatables to the mouth of the tributary, the company:

182.70(5)(a)1. 1. May charge uniform tolls for floatables driven on the tributary; and

182.70(5)(a)2. 2. Shall have all of the rights and remedies granted to river improvement companies by law.

182.70(5)(b) (b) If the company operates water reservoirs under this section capable of storing and discharging 2 billion cubic feet of water that would not be naturally stored, it may charge uniform tolls to the owners, lessees or operators of every improved and operated water power located upon the Wisconsin River or any of its tributaries below any of these reservoirs and benefited by the operation of these reservoirs. The sum of the tolls may not exceed the reasonable costs of operation and maintenance, including taxes and depreciation, plus a net return not exceeding 7 percent on the capital invested and a reasonable allowance for working capital. The tolls shall be a first lien, subject only to taxes, on the water power, dam, franchise and flowage rights of the person or corporation charged with the tolls. The company may sue to enforce the lien or for sale of the encumbered property.

182.70(5)(c) (c) The commission shall fix the tolls semiannually in proportion to the benefits received from the reservoir system by each improved and operated water power. A water power liable to tolls and operated 2 months or more during a 6-month toll period shall be subject to tolls for the entire period. A water power operating for less than 2 months during a 6-month period shall not be subject to a toll. The company shall employ hydraulic engineers to assist the company and the commission in determining the tolls to be charged. The expense of employing the engineers shall be a part of the cost of maintenance and operation of the works.

182.70(5)(d) (d) The owners or operators of the improved water power shall pay tolls charged under this subsection, unless the improved water power is operated by lessees under a contract made prior to October 6, 1939. In that case the lessees shall pay the tolls.

182.70(5)(e) (e) The commission shall provide notice to each water power operator to be charged with tolls. The commission shall determine and certify the amount of the tolls to be collected from each water power operator for the period under consideration. The tolls shall then be due the company.

182.70(6) (6) Review. A party aggrieved by the determination of tolls to be collected may petition for a hearing. A person whose substantial interests have been adversely affected by the commission’s decision may seek judicial review under ss. 227.53 to 227.58, in the circuit court in the county where the property affected is located.

182.70(7) (7) Reports to the commission. On or before June 30 and December 31 of each year, the company shall provide the commission with a statement showing:

182.70(7)(a) (a) All expenditures made or necessary to be made for the 6-month period preceding the next July 1 or January 1. Expenditures itemized shall include maintenance, operation and depreciation of the reservoir systems.

182.70(7)(b) (b) The location of each reservoir.

182.70(7)(c) (c) All reports and data obtained from engineers employed to determine tolls charged.

182.70(7)(d) (d) A recommendation of the amount of tolls necessary to pay the cost of maintenance, operation, taxes and depreciation, a net return not exceeding 7 percent on the capital invested, and a reasonable allowance for working capital, together with a recommendation on the apportionment of costs against the owners or operators of improved powers.

182.70(7)(e) (e) Other information and statements the commission may require.

182.70(8) (8) Duties of the department. The department shall mark the height to which any dam may raise the water level by permanent monuments and bench marks, shall supervise and control the times and extent of the drawing of the water from the reservoirs, and may compel the maintenance of all reservoirs established.

182.70(9) (9) Issue of capital stock and secured bonds approved by the commission.

182.70(9)(a) (a) The company may, after certification from the commission according to the procedures under ss. 201.03 and 201.04, issue bonds or other obligations secured by pledge, assignment, mortgage or trust deed of its property.

182.70(9)(b) (b) The company may retire its secured obligations by issuing stock as payment.

182.70(10) (10) State acquisition. The state has the right, whenever it has the constitutional power, to take over to itself, and become the owner of all reservoirs and other works and property acquired by the company under this section, by paying for the property either of the following:

182.70(10)(a) (a) The total capital invested by the company, including outstanding bonds or other obligations of the company lawfully issued and outstanding, the computation of which shall include outstanding bonds or other obligations and stock or stocks plus undistributed earned surplus.

182.70(10)(b) (b) The actual value of the physical properties to be taken over, without any allowance for franchise or goodwill of the business. If the actual value cannot be agreed upon by the state and the owner, it shall be determined by the commission.

182.70 History History: 1979 c. 90 s. 19; 1983 a. 189; 1985 a. 182 s. 57; 1995 a. 196; 1997 a. 140; 1999 a. 83, 150.

182.70 Annotation Legislative Council Note, 1979: The Wisconsin Valley Improvement Company was created by ch. 335, laws of 1907, for the purpose of building, maintaining and operating dams and reservoirs on the Wisconsin River and its tributaries. These improvements on the river serve to improve navigation, decrease the hazard of flooding and provide a uniform flow for all public purposes.

182.70 Annotation Chapter 335, laws of 1907, as amended, is incorporated into the statutes and amended to reflect current statutory drafting practices, without any intention of making substantive changes in the law. [Bill 458-A]

182.71 182.71 The Chippewa and Flambeau Improvement Company.

182.71(1) (1) In this section:

182.71(1)(a) (a) “Commission” means the public service commission.

182.71(1)(b) (b) “Company” means the Chippewa and Flambeau Improvement Company.

182.71(1)(c) (c) “Department” means the department of natural resources.

182.71(2) (2) 

182.71(2)(a) (a) The company shall produce as nearly a uniform flow of water as practicable in the Chippewa and Flambeau rivers, by storing in reservoirs surplus water for discharge when the water supply is low, to improve the usefulness of the rivers for all public purposes, and to reduce flood damage.

182.71(2)(b) (b) If maintaining uniform flow throughout the length of these rivers is impracticable, the company shall maintain as nearly a uniform flow in the upper portions of these rivers as is practicable.

182.71(3) (3) 

182.71(3)(a) (a) The company may create, acquire, lease, maintain and operate a system of water reservoirs located in or along:

182.71(3)(a)1. 1. The Court Oreilles River and its tributaries above the north line of township 38 north.

182.71(3)(a)2. 2. The east and west forks of the Chippewa River and their tributaries above a point one mile below the junction of such east and west forks.

182.71(3)(a)3. 3. The Thornapple River and its tributaries above its mouth.

182.71(3)(a)4. 4. Butternut Creek and its tributaries above its mouth.

182.71(3)(a)5. 5. The north fork of the Flambeau River and its tributaries above a point one mile below the junction of the Manitowish and Turtle rivers.

182.71(3)(a)6. 6. The south fork of the Flambeau River and its tributaries, including the Elk River, above the junction of the south fork of the Flambeau River and the Elk River.

182.71(3)(b) (b) The company may construct, acquire, maintain and operate dams, booms and other structures in, along, or across any of these portions of the rivers and their tributaries to accomplish the purposes of this section. The company may clean out, straighten, deepen or otherwise improve any of these rivers and tributaries to improve navigation or to prevent injury to property bordering on the rivers.

182.71(3)(c) (c) All franchises and all riparian rights and rights of flowage of any person or any corporation organized to improve the navigation of these rivers or their tributaries may be assigned to the company.

182.71(4) (4) 

182.71(4)(a) (a) The company may acquire by condemnation any property, interest in property or other right necessary to create, maintain or operate any reservoir, dam or other improvement, if the property cannot be purchased at an agreed price.

182.71(4)(b) (b) The commission shall appraise the damage a taking or overflow of state lands may cause. The company shall pay the amount appraised into the state treasury prior to the taking or overflow.

182.71(5) (5) 

182.71(5)(a) (a) If the company improves any tributary of the Chippewa River, or acquires the improvements or the control of the improvements of any river improvement company already operating on any tributary, and operates the works to allow the driving of logs and other floatables to the mouth of the tributaries, the company may charge uniform tolls for floatables driven on the tributary.

182.71(5)(b) (b) If the company operates water reservoirs under this section capable of storing and discharging 1.5 billion cubic feet of water that would not be naturally stored, it may charge uniform tolls to the owners, lessees or operators of every improved and operated water power located upon the Chippewa or Flambeau rivers or any of their tributaries below any of these reservoirs and benefited by the operation of these reservoirs. The sum of the tolls may not exceed the reasonable costs of operation and maintenance including rent paid for leased properties and a net annual return on the cash capital actually paid in on the stock subscriptions to the company and on the par value of all negotiable bonds issued by the company. The commission shall determine the net annual return.

182.71(5)(c) (c) The commission shall fix the tolls semiannually in proportion to the benefits received from the reservoir system by each improved and operated water power. A water power liable to tolls and operated 2 months or more during a 6-month toll period shall not be subject to tolls for the entire period. A water power operating for less than 2 months during a 6-month toll period shall not be subject to a toll. The company shall employ hydraulic engineers, selected by the commission, to assist the company and the commission in determining the tolls to be charged. The expense of employing the engineers shall be a part of the cost of maintenance and operation of the works.

182.71(5)(d) (d) The owners or operators of the improved water power shall pay tolls charged under this subsection, unless the improved water power is operated by lessees under a contract made prior to July 12, 1911. In that case the lessees shall pay the tolls.

182.71(5)(e) (e) The commission shall provide notice to each water power operator to be charged with tolls. The commission shall determine and certify the amount of the tolls to be collected from each water power operator for the period under consideration. The tolls shall then be due the company.

182.71(5)(f) (f) No tolls shall be levied or used to pay for any part of the original acquisition or improvement of the reservoir system. The tolls shall be a lien on the water power, dam, franchises and flowage rights of the person or corporation charged with the tolls. The company may sue to enforce the lien or for the sale of the encumbered property.

182.71(5)(g) (g) A party aggrieved by the determination of tolls to be collected may petition for a hearing. A person whose substantial interests have been adversely affected by the commission’s decision may seek judicial review under ss. 227.53 to 227.58, in the circuit court in the county where the property affected is located.

182.71(6) (6) On or before June 15 and December 15 of each year, the company shall provide the commission with a statement showing:

182.71(6)(a) (a) All expenditures made or necessary to be made for the 6-month period preceding the next July 1 or January 1 for maintenance and operation of the reservoir system.

182.71(6)(b) (b) All capital stock the company issued and all outstanding negotiable bonds.

182.71(6)(c) (c) The cash capital actually paid in.

182.71(6)(d) (d) The storage capacity and location of each reservoir.

182.71(6)(e) (e) All reports and data obtained from engineers employed to determine tolls charged.

182.71(6)(f) (f) A recommendation of the amount of tolls necessary to pay the cost of maintenance and operation and a net return of 6 percent per year on the capital invested, including the par value of the outstanding negotiable bonds, together with a recommendation as to the apportionment of the tolls against the owners or operators of improved powers under sub. (5); and

182.71(6)(g) (g) Other information the commission may require.

182.71(7) (7) 

182.71(7)(a) (a) The commission shall appraise and fix the price of any dam, land or flowage rights to be purchased by the company under this section. The commission shall approve any lease of property by the company prior to the payment of rent. The commission may require the department to aid in appraising the value of the land.

182.71(7)(b) (b) If the company intends to acquire and overflow property, the commission shall approve the need to overflow the property. The department shall mark the height to which any dam may raise the water level by permanent monuments and bench marks, shall supervise and control the time and extent of the drawing of water from the reservoirs, except as provided in s. 31.02 (4d), and may compel the maintenance of all reservoirs established. The commission and the department may employ, at the expense of the company, hydraulic engineers and other persons to assist in obtaining information necessary to enforce this section. The cost of hiring the engineers shall be included as a part of the cost of construction or maintenance and operation of the reservoir system. The department is subject to the restrictions under s. 31.02 (4d) in issuing, amending, or revising an order under this paragraph for a dam that meets the conditions under s. 31.02 (4d).

182.71(7)(c) (c) The company may, after certification from the commission according to the procedures under ss. 201.03 to 201.04, issue capital stock or negotiable bonds. The money received by the company upon account of capital stock or sale of its negotiable bonds shall be used to pay the original cost of purchase, construction or improvement of the reservoir system. All tolls collected under sub. (5) shall be applied only to the payment of cost of maintenance and operation of the system and payment of the net return on capital so that the capital stock and bonds of the corporation shall be maintained at par value at all times.

182.71(7)(d) (d) Subject to approval of the commission, the company may issue negotiable interest-bearing bonds to provide funds to acquire dams, reservoirs and rights under this section. The issue shall not exceed one-half of the total cost of the improvement. The company may secure payment by mortgage of its property. If any bonds are issued and outstanding, all earnings of the capital stock shall be invested subject to the approval of the commission as a sinking fund for the purpose of retiring outstanding bonds, and while any bonds are outstanding, no dividends shall be paid to the stockholders of record.

182.71(8) (8) This state shall have the right at any time, whenever it may have the constitutional power, to take over to itself and become owner of all reservoirs and other works and property acquired by the Chippewa and Flambeau Improvement Company, under this section, by paying therefor the cash capital actually paid on the capital stock of the company theretofore lawfully issued and outstanding or the actual value of the physical properties so taken over and without any allowance for franchises or goodwill of the business, such actual value to be determined by the commission.

182.71(9) (9) This section shall not release any right, title or interest acquired by the state or that may be acquired under any federal law.

182.71 History History: 1979 c. 90 s. 20; 1979 c. 177; 1985 a. 182 s. 57; 1995 a. 196; 1997 a. 140; 1999 a. 150; 2015 a. 55.

182.71 Annotation Legislative Council Note, 1979: The Chippewa and Flambeau Improvement Company was created by ch. 640, laws of 1911, for the purpose of building, maintaining and operating dams and reservoirs on the Chippewa and Flambeau rivers. These improvements on the river serve to improve navigation, decrease the hazard of flooding and provide a uniform flow for all public purposes.

182.71 Annotation Chapter 640, laws of 1911, as amended, is incorporated into the statutes and amended to reflect current statutory drafting practices, without any intention of making substantive changes in the law. [Bill 458-A]