Chapter 84

84.072(2m)(b)5. 5. Any person to whom 49 CFR 26, as that section existed on October 1, 1999, requires or specifically authorizes the certifying authority to disclose such information.

84.072(2m)(b)6. 6. The federal department of transportation, if the certifying authority discloses the information for the purposes of a certification appeal proceeding in which the disadvantaged status of the individual is in question.

84.072(3) (3) Implied consent. Any municipality, county, or other person, including the Wisconsin Aerospace Authority created under subch. II of ch. 114, that accepts federal moneys from the appropriations under s. 20.395 (1) (bx), (2) (ax), (dx), (fx), or (mx), or (3) (bx), (cx), or (ex), or accepts other federal moneys for highway, transit, airport, or spaceport purposes, after September 1, 2001, is considered to have given consent to the unified certification disadvantage business program administered under this section.

84.072(4) (4) Requirements of certified businesses. A business certified as a disadvantaged business shall, within 30 days after a change in the business’s size, disadvantaged status, ownership, or control that could preclude its certification as a disadvantaged business under 49 CFR 26, notify the department of that change by sworn and notarized statement. A business certified as a disadvantaged business shall submit annually to the department a sworn, notarized statement attesting that there have been no changes to the business’s size, disadvantaged status, ownership or control, or its gross receipts, that would preclude its certification as a disadvantaged business under 49 CFR 26. The notice shall include a statement that the business meets the size and gross receipts criteria for certification and shall include documentary evidence supporting that statement. The department shall remove the certification of any disadvantaged business that fails to provide the statement within 13 months after certification under this section, or within 13 months after it last submitted to the department the information required under this subsection, whichever is later.

84.072(5) (5) Directory of certified businesses. The department shall maintain a list of all businesses certified as a disadvantaged business by a certifying authority or by a state that is a party to an agreement under sub. (6). The list shall include the business name, address, telephone number, and types of work that the business is certified to perform as a disadvantaged business. The department shall make the list and any updated information available to any person, at no charge, on the Internet and in printed format. The department shall update the list at least annually, but shall update the electronic list available on the Internet by including additions, deletions, or other changes to the list as soon as the department makes such an addition, deletion, or other change.

84.072(5m) (5m) Certification by a municipality or county. The department may authorize any municipality or county to certify a business as a disadvantaged business. The authorization shall be in writing and shall require the municipality or county to conform strictly to the standards and processes provided in this section and rules promulgated under this section. The authorization shall be valid for one year. The authorization shall require the municipality or county to provide written notice to the department of any certification decision. The written notice shall include all of the information contained in the directory maintained under sub. (5). The authorization shall require the municipality or county to forward applications to the department under sub. (2) (b) 3. Certification by a municipality or county is valid for 3 years, unless the department removes certification under sub. (4) or the certification is removed as provided in 49 CFR 26.87 or 26.89. No municipality or county authorized under this subsection may hear any appeals or complaints regarding certification decisions.

84.072(6) (6) Reciprocal certification agreements. Notwithstanding sub. (2) (a), the department may enter into a reciprocal agreement with any other state establishing a joint unified certification program that strictly conforms to 49 CFR 26. The agreement may authorize the other state to certify as a disadvantaged business any business that is based in this state, or may authorize the department to certify as a disadvantaged business any business based in that other state.

84.072(7) (7) Certification appeals and complaints.

84.072(7)(a) (a) Any business whose application for certification is denied, or is not reviewed within the time limits prescribed in sub. (2) (a), or whose certification is removed, may appeal that action as provided in 49 CFR 26.89 to the department.

84.072(7)(b) (b) Any person may file with the department a signed, written complaint that a business that a certifying authority has certified under this section is not eligible for such certification. The department shall investigate complaints that it finds are supported by credible evidence. If, upon investigation, the department finds reasonable cause to believe that a business is not eligible for certification, the department shall notify the business of its findings in writing and shall proceed in the manner provided under 49 CFR 26.87.

84.072(8) (8) Applicability. This section does not apply if federal law does not require, as a condition of using federal funds, this state to establish goals for the participation of disadvantaged businesses or the employment of disadvantaged individuals in projects using federal funds.

84.072 History History: 2001 a. 16, 104; 2005 a. 335.

84.075 84.075 Contracting with minority businesses and disabled veteran-owned businesses.

84.075(1c) (1c) In this section:

84.075(1c)(a) (a) “Disabled veteran-owned business” means a business certified by the department of administration under s. 16.283 (3).

84.075(1c)(b) (b) “Minority business” means a business certified by the department of administration under s. 16.287 (2).

84.075(1m) (1m) 

84.075(1m)(a) (a) In purchasing services under s. 84.01 (13), in awarding construction contracts under s. 84.06 and in contracting with private contractors and agencies under s. 84.07, the department shall attempt to ensure that 5 percent of the total amount expended in each fiscal year is paid to contractors, subcontractors, and vendors that are minority businesses. In attempting to meet this goal, the department may award any contract to a minority business that submits a qualified responsible bid that is no more than 5 percent higher than the low bid.

84.075(1m)(b) (b) In purchasing services under s. 84.01 (13), in awarding construction contracts under s. 84.06, and in contracting with private contractors and agencies under s. 84.07, the department shall attempt to ensure that at least 1 percent of the total amount expended in each fiscal year is paid to contractors, subcontractors, and vendors that are disabled veteran-owned businesses. In attempting to meet this goal, the department may award any contract to a disabled veteran-owned business that submits a qualified responsible bid that is no more than 5 percent higher than the low bid unless doing so would violate the provisions of any federal law or regulation or any contract between the department and a federal agency or would otherwise result in a reduction of the amount of federal highway aid received by this state.

84.075(1m)(c) (c) If a contractor, subcontractor, or vendor is both a minority business and a disabled veteran-owned business, the department may award a contract under par. (a) or (b) but the qualified responsible bid must be no more than 5 percent higher than the low bid, as provided under pars. (a) and (b).

84.075(2) (2) The contractor shall report to the department any amount of the contract paid to subcontractors and vendors which are minority businesses or disabled veteran-owned businesses.

84.075(3) (3) The department shall at least semiannually, or more often if required by the department of administration, report to the department of administration the total amount of money it has paid to contractors, subcontractors, and vendors that are minority businesses and that are disabled veteran-owned businesses under ss. 84.01 (13), 84.06, and 84.07 and the number of contacts with minority businesses and disabled veteran-owned businesses in connection with proposed purchases and contracts. In its reports, the department shall include only amounts paid to businesses certified by the department of administration as minority businesses or disabled veteran-owned businesses.

84.075 History History: 1983 a. 27; 1983 a. 390 ss. 4, 6; 1987 a. 27; 2009 a. 299; 2011 a. 32; 2011 a. 260 s. 80; 2013 a. 192; 2021 a. 239.

84.076 84.076 Disadvantaged business demonstration and training program.

84.076(1) (1) Definitions. In this section:

84.076(1)(a) (a) “Disadvantaged individual” means a minority group member, a woman or any other individual found by the department to be socially and economically disadvantaged within the meaning given in 49 CFR 26.5, unless successfully challenged as provided in 49 CFR 26.89.

84.076(1)(b) (b) “Disadvantaged business” has the meaning given in s. 84.072 (1) (b).

84.076(1)(c) (c) “Minority business” has the meaning given under s. 16.287 (1) (e).

84.076(1)(d) (d) “Minority group member” has the meaning given under s. 16.287 (1) (f).

84.076(2) (2) Administration.

84.076(2)(a) (a) The secretary shall administer a demonstration and training program for the purpose of developing the capability of disadvantaged businesses to participate in construction projects funded under s. 20.395 (3) (bq), (bv), (bx), (cq), (cv), (cx), (eq), (ev) and (ex). From the amounts appropriated under those paragraphs, the secretary shall allocate $4,000,000 each fiscal year for the awarding of contracts under this section. The secretary shall attempt to ensure that 75 percent of the amount so allocated each fiscal year is for the awarding of contracts under this section to minority businesses. The secretary may award 100 percent of the amount so allocated each fiscal year to one disadvantaged business.

84.076(2)(b) (b) The secretary shall establish requirements for programs of preapprenticeship training and management and technical assistance designed to develop the expertise of disadvantaged individuals and disadvantaged businesses in transportation construction.

84.076(3) (3) Bids, contracts. Section 84.06 (2) applies to bids and contracts under this section, except that the secretary shall reject low bids that do not satisfy the requirements under sub. (4). Each bid submitted under this section shall include the agreement specified under sub. (4) and, as a condition, a goal that at least 25 percent of the total number of workers in all construction trades employed on the project will be disadvantaged individuals.

84.076(4) (4) Contractor responsibilities. Each contractor shall agree to do one of the following in its bid submitted under sub. (3):

84.076(4)(a) (a)

84.076(4)(a)1. 1. Assure that the contractor has developed a program of preapprenticeship training that satisfies the requirements established by the secretary under sub. (2) (b) and has experience in providing the training to disadvantaged individuals; and

84.076(4)(a)2. 2. Assure that the contractor has developed and has experience in providing a program of management and technical assistance to disadvantaged business subcontractors. The management and technical assistance program shall satisfy the requirements established by the secretary under sub. (2) (b) and shall include all of the following:

84.076(4)(a)2.a. a. On-site administrative support.

84.076(4)(a)2.b. b. Assistance with managing scheduling, finances and property.

84.076(4)(a)2.c. c. The provision of other management services necessary to assist disadvantaged businesses in developing construction capabilities and opportunities for participation in construction projects.

84.076(4)(b) (b) Obtain from a subcontractor that has experience in providing training to disadvantaged individuals a program of preapprenticeship training that satisfies the requirements established by the secretary under sub. (2) (b), and assure that the subcontractor has experience in providing a program of management and technical assistance to disadvantaged business contractors, and that the subcontractor’s management and technical assistance program satisfies the requirements established by the secretary under sub. (2) (b) and includes all of the requirements of par. (a) 2. A subcontractor under this paragraph need not be a disadvantaged business, but if the subcontractor is not a disadvantaged business, it may not be included within the goal established under sub. (3).

84.076(5) (5) Sunset. This section does not apply after the later of the following:

84.076(5)(a) (a) September 30, 1997.

84.076(5)(b) (b) The date on which federal law does not require, as a condition of using federal funds, that this state establish goals for the participation of disadvantaged businesses or the employment of disadvantaged individuals in projects using federal funds.

84.076 History History: 1987 a. 399; 1989 a. 31; 1991 a. 39; 1993 a. 112; 1995 a. 113; 1997 a. 27; 2001 a. 16; 2011 a. 32; 2021 a. 239 s. 73.

84.076 Annotation This section is unconstitutional as applied to goals for disadvantaged business subcontractor participation in exclusively state-funded projects but is constitutional as applied to federally-funded projects. Milwaukee County Pavers Ass’n v. Fiedler, 731 F. Supp. 1395 (1990).

84.078 84.078 Use of recovered material.

84.078(1) (1) In this section:

84.078(1)(am) (am) “High-volume industrial waste” means fly ash, bottom ash, paper mill sludge or foundry process waste, or any other waste with similar characteristics specified by the department of natural resources by rule.

84.078(1)(ar) (ar) “Highway improvement” has the meaning given in s. 84.06 (1).

84.078(1)(bc) (bc) “Operator” has the meaning given in s. 292.31 (8) (a) 1.

84.078(1)(be) (be) “Owner” has the meaning given in s. 292.31 (8) (a) 2.

84.078(1)(bg) (bg) “Person” means an individual, owner, operator, corporation, limited liability company, partnership, association, municipality, interstate agency, state agency or an officer or agent of a state agency, federal agency, department or instrumentality.

84.078(1)(bm) (bm) “Recovered material” means a material that is recovered or derived from solid waste.

84.078(2) (2) The department shall use or encourage the use of the maximum possible amount of recovered material, including glass, wastepaper, pavement and high-volume industrial waste as surfacing material, structural material, landscaping material and fill for all highway improvements, consistent with standard engineering practices. The department shall specify the proportion of recovered material that may be used in various types of highway improvements.

84.078(3) (3) 

84.078(3)(a) (a) Notwithstanding chs. 160, 281 to 285 and 289 to 299, no person is required to take or pay for any remedial or corrective action as a result of environmental pollution resulting from the use of high-volume industrial waste in a highway improvement project if all of the following apply:

84.078(3)(a)1. 1. The high-volume industrial waste is incorporated into the highway improvement in accordance with the policies, guidelines and rules applicable to the highway improvement at the time of the design of the improvement and at the time of certification under subd. 2.

84.078(3)(a)2. 2. The department of natural resources certifies to the department of transportation, before the time that the department of transportation advertises for bids for the improvement, that the high-volume industrial waste intended to be used and the design for the use of the high-volume industrial waste comply with all applicable state requirements or standards administered by the department of natural resources.

84.078(3)(b) (b) The exemption under par. (a) extends to the transportation of high-volume industrial waste to or from the site of a highway improvement and to the storage of high-volume industrial waste at the site of a highway improvement. The exemption provided under par. (a) continues to apply after the date of certification by the department of natural resources under par. (a) 2., notwithstanding the occurrence of any of the following:

84.078(3)(b)1. 1. Statutes or rules are amended that would impose greater responsibilities on the department of transportation.

84.078(3)(b)2. 2. Alterations due to construction, maintenance, utility installation or other activities by the department of transportation or approved by the department of transportation after the completion of the highway improvement affect the high-volume industrial waste at the site of the highway improvement.

84.078(3)(c) (c) The department of transportation and the department of natural resources may enter into agreements establishing standard lists of high-volume industrial waste that may be used in highway improvements and designs for the use of high-volume industrial waste in highway improvements that comply with rules of the department of natural resources applicable at the time of the design of the highway improvement in order to simplify certification under par. (a) 2. to the greatest extent possible.

84.078(3)(d) (d)

84.078(3)(d)1. 1. Except as provided in subd. 3., no state agency may commence an action or proceeding under federal law to require remedial action or to recover the costs of remedying environmental pollution related to the use of high-volume industrial waste in a highway improvement certified under par. (a) 2.

84.078(3)(d)2. 2. Except as provided in subd. 3., no person may commence an action under state law to require remedial action or to recover the costs of remedying environmental pollution related to the use of high-volume industrial waste in a highway improvement certified under par. (a) 2.

84.078(3)(d)3. 3. If the department of transportation is named as a defendant or a respondent in an action or proceeding under federal law to require remedial action, or to recover the costs of remedying environmental pollution, related to the use of high-volume industrial waste in a highway improvement that satisfies the requirements under par. (a), the department of transportation may do any of the following:

84.078(3)(d)3.a. a. Commence an action or proceeding under federal or state law to require remedial action, or to recover the costs of remedying environmental pollution, related to the use of high-volume industrial waste in that highway improvement.

84.078(3)(d)3.b. b. Commence an action or proceeding to enforce any stipulation, agreement or judgment resulting from an action or proceeding described in this subdivision.

84.078 History History: 1987 a. 27, 110; 1987 a. 403 s. 106; Stats. 1987 s. 84.078; 1989 a. 335; 1995 a. 27, 227.

84.08 84.08 Franchises. No franchise or permit granted by any town or village or city to any corporation to use any state trunk highway shall become effective unless such franchise or permit has been approved by the department. The order of the department shall provide for or approve the method by which the work authorized by the franchise or permit is to be done or by which the highway is to be restored to its former condition.

84.08 History History: 1977 c. 29 s. 1654 (8) (a).

84.09 84.09 Acquisition of lands and interests therein.

84.09(1) (1) The department may acquire by gift, devise, purchase or condemnation any lands for establishing, laying out, widening, enlarging, extending, constructing, reconstructing, improving and maintaining highways and other transportation related facilities, or interests in lands in and about and along and leading to any or all of the same; and after establishment, layout and completion of such improvements, the department may, subject to any prior action under s. 13.48 (14) (am) or 16.848 (1), convey such lands thus acquired and not necessary for such improvements, with reservations concerning the future use and occupation of such lands so as to protect such public works and improvements and their environs and to preserve the view, appearance, light, air and usefulness of such public works. Whenever the department deems it necessary to acquire any such lands or interests therein for any transportation related purpose, it shall so order and in such order or on a map or plat show the old and new locations and the lands and interests required, and shall file a copy of the order and map with the county clerk and county highway committee of each county in which such lands or interests are required or, in lieu of filing a copy of the order and map, may file or record a plat in accordance with s. 84.095. For the purposes of this section the department may acquire private or public lands or interests in such lands. When so provided in the department’s order, such land shall be acquired in fee simple. Unless it elects to proceed under sub. (3), the department shall endeavor to obtain easements or title in fee simple by conveyance of the lands or interests required at a price, including any damages, deemed reasonable by the department. The instrument of conveyance shall name the state as grantee and shall be recorded in the office of the register of deeds. The purchase or acquisition of lands or interests therein under this section is excepted and exempt from s. 20.914 (1). The department may purchase or accept donations of remnants of tracts or parcels of land existing at the time or after it has acquired portions of such tracts or parcels by purchase or condemnation for transportation purposes where in the judgment of the department such action would assist in making whole the landowner, a part of whose lands have been taken for transportation purposes and would serve to minimize the overall costs of such taking by the public.

84.09(2) (2) If any of the needed lands or interests therein cannot be purchased expeditiously for a price deemed reasonable by the department, the department may acquire the same by condemnation under ch. 32.

84.09(3) (3) 

84.09(3)(a) (a) The department may order that all or certain parts of the required land or interests therein be acquired by the county highway committee. When so ordered, the committee and the department shall appraise and agree on the maximum price, including damages, considered reasonable for the lands or interests to be so acquired. The committee shall endeavor to obtain easements or title in fee simple by conveyance of the lands or interests required, as directed in the department’s order. The instrument of conveyance shall name the county as grantee, shall be subject to approval by the department, and shall be recorded in the office of the register of deeds and filed with the department. If the needed lands or interests therein cannot be purchased expeditiously within the appraised price, the county highway committee may acquire them by condemnation under ch. 32.

84.09(3)(b) (b) Any property of whatever nature acquired in the name of the county pursuant to this section or any predecessor shall be conveyed to the state without charge by the county highway committee and county clerk in the name of the county when so ordered by the department.

84.09(3)(c) (c) The county highway committee when so ordered by the department is authorized and empowered to sell and shall sell at public or private sale, subject to such conditions and terms authorized by the department, any and all buildings, structures, or parts thereof, and any other fixtures or personalty acquired in the name of the county under this section or any predecessor. Any instrument in the name of the county, transferring title to the property mentioned in the foregoing sentence, shall be executed by the county highway committee and the county clerk. The proceeds from such sale shall be deposited with the state in the appropriate transportation fund and the expense incurred in connection with such sale shall be paid from such fund.

84.09(3)(d) (d) Section 59.52 (6) (c) shall not apply to any conveyance or transfer made under this section.

84.09(3m) (3m) The department may order that all or certain parts of the required land or interest therein be acquired for the department by a board, commission or department of the city, village or town within whose limits the land is located. The city board or city, village or town commission or department shall be created or selected by the common council, village board or town board subject to the approval of the department. When so ordered, the board, commission or department created or selected and the department shall appraise and agree on the maximum price, including damages, considered reasonable for the lands or interests to be so acquired. The city, village or town board, commission or department shall endeavor to obtain easements or title in fee simple by conveyance of the lands or interests required, as directed in the department’s order. The instrument of conveyance shall name the state as grantee and shall be recorded in the office of the register of deeds. If the needed lands or interests therein cannot be purchased expeditiously within the appraised price, the city, village or town board, commission or department may, subject to approval by the department, acquire them by condemnation in the name of the state under ch. 32. The city, village or town attorney may act as counsel in any proceedings brought under authority of this subsection. Special counsel may be employed with the consent of the governor and the secretary. The city, village or town, upon agreement with the department, may pay for the land or interests acquired from city, village or town funds made available for such purpose or not otherwise appropriated, as an advance subject to reimbursement by the department or as part of the city’s, village’s or town’s contribution toward the cost of the improvement.

84.09(4) (4) The cost of the lands and interests acquired and damages allowed pursuant to this section, expenses incidental thereto, expenses of the county highway committee incurred in performing duties under this section and the county highway committee’s customary per diem, or a per diem not to exceed the lawful rate permitted for members of county boards if the highway committee members receive an annual salary, are paid out of the available improvement or maintenance funds. Members of a highway committee who receive an annual salary shall be entitled to the per diem paid, as compensation for their services, in addition to their annual salary fixed pursuant to s. 59.10 (3) (i).

84.09(5) (5) 

84.09(5)(a) (a) Subject to pars. (b) and (c) and any prior action under s. 13.48 (14) (am) or 16.848 (1), and subject to the approval of the governor, the department may sell at public or private sale property of whatever nature owned by the state and under the jurisdiction of the department when the department determines that the property is no longer necessary for the state’s use for transportation purposes and, if real property, the real property is not the subject of a petition under s. 16.310 (2). The department shall present to the governor a full and complete report of the property to be sold, the reason for the sale, and the minimum price for which the same should be sold, together with an application for the governor’s approval of the sale. The governor shall thereupon make such investigation as he or she may deem necessary and approve or disapprove the application. Upon such approval and receipt of the full purchase price, the department shall by appropriate deed or other instrument transfer the property to the purchaser. The approval of the governor is not required for public or private sale of property having an appraised value at the time of sale of not more than $15,000, for the transfer of surplus state real property to the department of administration under s. 16.310, or for the transfer of surplus state personal property to the department of tourism under sub. (5s). The funds derived from sales under this subsection shall be deposited in the transportation fund, and the expense incurred by the department in connection with the sale shall be paid from such fund.

84.09(5)(b) (b) Subject to the approval of the governor in the manner, scope, and form specified in par. (a), with respect to the sale of property acquired by the department for a project that is completed after May 25, 2006, the department shall, and with respect to the sale of property acquired by the department for a project that is completed before May 25, 2006, the department may offer for sale or transfer ownership of the property that the department determines is no longer necessary for the state’s use for transportation purposes, if the property is not the subject of a petition under s. 16.310 (2). This disposition process shall take place within 24 months of the completion of the transportation project for which the property was acquired. Except as provided in par. (c) 3., the department shall offer limited and general marketable properties at appraised value, as determined by a state-certified or licensed appraiser, for not less than 12 months. If the department does not sell the property at or above its appraised value, the department shall offer the property for sale by means of sealed bids or public auction. For the purposes of this paragraph, a project is completed when final payment is made under the contract for the project.

84.09(5)(c) (c)

84.09(5)(c)1. 1. Subject to any prior action under s. 13.48 (14) (am) or 16.848 (1), prior to conducting a public sale on a generally marketable surplus land parcel under par. (b), the department shall contact the county, municipality, and the local school district where the land parcel is located and the department of natural resources to solicit interest in acquiring the parcel for public use. Upon notification from the department, the county, municipality, local school district, and department of natural resources must respond to the department, stating their interest in the land for public use, within 60 days. Failure to respond within 60 days constitutes noninterest in the land parcel.

84.09(5)(c)2. 2. Except as provided in subd. 2m. and subject to any prior action under s. 13.48 (14) (am) or 16.848 (1), if a county, a municipality, a local school district, or the department of natural resources expresses interest in acquiring the land for public use, the department shall offer the county, municipality, local school district, or department of natural resources the property at its appraised value if all of the following are true:

84.09(5)(c)2.a. a. The county, municipality, local school district, or department of natural resources provides a plan to the department identifying the proposed public use for the land parcel and the acreage involved in the public use.