Chapter 85

85.08(2) (2) General powers. The department shall administer the programs of financial and technical assistance under this section for the purpose of assistance to or restoration of freight railroad service and shall maximize the use of available federal aid in conjunction with the allocation of state aid. The department may exercise those powers necessary to establish freight railroad assistance programs, including authority:

85.08(2)(b) (b) To plan, promote and engage in financial and technical assistance programs for continuing, restoring and operating rail branch line transportation services.

85.08(2)(c) (c) To maintain adequate programs of investigation, research, promotion and development in connection with transportation programs authorized under this section and to provide for public participation in these programs.

85.08(2)(d) (d) To comply with federal regulations affecting federal transportation service continuation or restoration, or operating assistance programs.

85.08(2)(e) (e) To enter into joint service agreements or other agreements providing for mutual cooperation related to transportation services and projects, including joint applications for federal aids with any county or other body public and corporate.

85.08(2)(f) (f) To receive, use or reallocate federal funds, grants, gifts and aids.

85.08(2)(g) (g) To adopt rules necessary to effectuate and enforce this section and to prescribe conditions and procedures, including auditing and accounting methods and practices, to assure compliance in carrying out the purposes for which state financial and technical assistance is made.

85.08(2)(i) (i) To make and execute contracts with the federal government, any other state or any county, city, village, town, railroad, or any transit commission organized under s. 59.58 (3), 66.0301 or 66.1021, to ensure the continuance and improvement of quality transportation service at reasonable rates or to provide for rail service on rail property owned by the state.

85.08(2)(j) (j) To audit the operating revenues and expenditures of all transportation systems participating in the aids program under this section in accordance with accounting methods and practices prescribed by the department.

85.08(2)(k) (k) To allow other uses of rail corridors owned by the state that are being used for freight rail service when such uses serve the purpose of providing assistance to or restoration of freight rail service, and to regulate the safety and compatibility of such uses with the provision of freight rail service by issuing a permit for any such use.

85.08 Cross-reference Cross-reference: See also ch. Trans 31, Wis. adm. code.

85.08(2)(L) (L) To acquire rail property for the purpose of preserving freight rail service or improving the efficiency of freight rail service if, in the department’s judgment, the public interest requires acquisition of the rail property.

85.08(3) (3) Coordination and cooperation.

85.08(3)(a) (a) The department shall coordinate the transportation activities of the state to effectuate the purposes of this section and is responsible for negotiating with the federal government for transportation service programs authorized under this section.

85.08(3)(b) (b) The department may cooperate with other states in connection with the acquisition, rehabilitation, construction or operation of any transportation properties within this state or in other states in order to carry out the purposes of this section. The department may enter into contractual arrangements for such purposes, including joint acquisition of transportation properties with other states and entering into leases jointly with other states affected thereby.

85.08(4) (4) Rail planning and technical assistance grants. Upon its own initiative or upon application by a government agency, the department may make grants of financial assistance and provide technical assistance for rail system, service and technical studies.

85.08(4m) (4m) Freight railroad loans and grants.

85.08(4m)(a) (a) Purpose; findings. The purpose of this subsection is to assist in the preservation and improvement of freight rail service in this state. The legislature finds that private capital and local government contributions are insufficient for adequate freight rail service. The legislature finds that freight rail service preservation and improvement bear a significant relationship to the conservation of energy, the preservation of existing economic and tax bases and the maintenance of a balanced transportation system. The legislature further finds that these are proper governmental functions and that the programs authorized under this subsection are therefore valid governmental functions serving proper public purposes. It is the intent of this subsection to promote the public good by preserving and improving freight rail service in this state.

85.08(4m)(b) (b) Definitions. In this subsection:

85.08(4m)(b)1. 1. “Eligible applicant” means a county, municipality or town or agency thereof, a railroad, a current or potential user of freight rail service or a transit commission organized under s. 59.58 (3), 66.0301 or 66.1021.

85.08(4m)(b)3. 3. “Rail service” means a level of rail service which the department determines to be an acceptable level of service.

85.08(4m)(c) (c) Railroad facilities acquisition grants and loans. The department may make grants to eligible applicants for the purpose of preserving freight rail service through the acquisition of rail property. The grant may be composed of state funds, federal funds, state property, the use of state property, or any combination of state funds, federal funds, state property, and the use of state property. No grant for the acquisition of rail property improvements may exceed 80 percent of the acquisition cost. No grant for the acquisition of rail property exclusive of rail property improvements may exceed 100 percent of the acquisition cost. The department shall give priority in awarding grants to those projects for which the applicant agrees to pay greater than 20 percent of the cost of the acquisition of rail property improvements. A grant may be made to an eligible applicant before or after abandonment of a railroad line as defined in s. 85.09 (3). The department may permit an eligible applicant’s share of an increase in the acquisition cost of rail property or rail property improvements to be paid in installments if the increase in acquisition cost is caused by negotiation or litigation. No grant may be made under this paragraph for the acquisition of rail property if the acquisition price exceeds an amount deemed reasonable by the department. If a grant is made to an eligible applicant under this paragraph, the department may award a loan to the eligible applicant for not more than 15 percent of the acquisition cost. A grant of money or a loan made under this paragraph shall be paid from the appropriation under s. 20.395 (2) (bq), (bu), or (bx) or 20.866 (2) (uw). The department shall administer this program and shall have all powers necessary and convenient to implement this paragraph and par. (d), including the following powers:

85.08(4m)(c)1. 1. To develop the specifications and provisions of the grants and loans which are made to eligible applicants.

85.08(4m)(c)2. 2. To receive and review applications for grants and loans and to prescribe the form, nature and extent of the information which shall be contained in applications.

85.08(4m)(c)3. 3. To determine whether the proposed rail service to be provided on the rail property acquired, rehabilitated or constructed with financial assistance under this paragraph or par. (d) has a likelihood of attaining and sustaining economic self-sufficiency and to employ such findings in the awarding of grants and loans.

85.08(4m)(c)4. 4. To determine whether the rail property to be acquired with financial assistance under this paragraph offers satisfactory opportunity for alternate public use or recovery of public funds and to employ such findings in the awarding of grants and loans.

85.08(4m)(c)5. 5. To make and execute agreements with eligible applicants for grants and loans. These agreements shall ensure that any public purpose served by the financial assistance is appropriately maintained by the eligible applicant, that rail service on the line is adequately continued and that the required corridor preservation, maintenance, rehabilitation and improvement activities are performed.

85.08(4m)(c)6. 6. To determine whether rail service is being adequately continued and the grantee or, if applicable, the railroad providing service on the affected rail line is performing any corridor preservation, maintenance or improvement activities that are required by the department on a rail line for which a grant is made under this paragraph or par. (d). If, without the approval of the department, rail service is discontinued or the grantee disposes of any portion of the rail property for which financial assistance was obtained under this paragraph or par. (d), or if corridor preservation, maintenance or improvement activities are inadequate, including failing to meet any federal or state safety or performance standards specified in the agreement with the department or established by departmental rule, the rail property for which financial assistance was obtained shall revert to the ownership and control of the department unless the department elects to accept repayment from the grantee of the full amount of all grants and loans received from the department for the line, including any interest accrued on loans.

85.08(4m)(c)7. 7. To provide technical assistance to the eligible applicant and any railroad using the rail property in a manner deemed necessary by the department.

85.08(4m)(d) (d) Railroad rehabilitation and construction grants and loans. The department may make grants to eligible applicants for the purpose of rehabilitating or constructing rail property improvements. Construction shall be limited to that which is required to continue rail service on a particular line or to provide alternative rail service when a line has been abandoned. A grant under this paragraph may be composed of state funds, federal funds, state property, the use of state property, technical assistance, or any combination of state funds, federal funds, state property, the use of state property, and technical assistance. The value of a grant may not exceed 80 percent of the costs of rehabilitation or construction. The department shall give priority in awarding grants to those projects for which the applicant agrees to pay greater than 20 percent of the costs of rehabilitation or construction. If a grant is made to an eligible applicant under this paragraph, the department may award a loan to the eligible applicant for not more than 15 percent of the rehabilitation or construction costs. A grant may be made before or after abandonment of a railroad line as defined in s. 85.09 (3). A grant or loan made under this paragraph shall be paid from the appropriation under s. 20.395 (2) (bq), (bu), or (bx) or 20.866 (2) (uw).

85.08(4m)(e) (e) Freight rail infrastructure improvement loans.

85.08(4m)(e)1. 1. Upon the request of an eligible applicant, the department may negotiate and enter into a loan agreement with the eligible applicant for purposes of rehabilitating a rail line or to finance an economic development and transportation efficiency project, including a project designed to promote safety or the viability of a statewide system of freight rail service, to assist intermodal freight movement or to provide industry access to a rail line. A loan made under this paragraph shall finance a project that confers a public benefit or enhances economic development in this state. Loans made under this paragraph shall be paid from the appropriation under s. 20.395 (2) (bu), (bw) or (bx).

85.08(4m)(e)2. 2. Projects for which a loan made under this paragraph may be used include all of the following:

85.08(4m)(e)2.a. a. Line upgrades that will expand the use of a rail line for the public benefit, including increased passenger service and increased use of double-stack technology and piggyback service.

85.08(4m)(e)2.b. b. Rail branch line stabilization or upgrading.

85.08(4m)(e)2.c. c. Projects associated with rail intermodal facilities, such as terminals, team tracks, docks, conveyers and other loading and unloading facilities.

85.08(4m)(e)2.d. d. Relocation of a freight rail off-loading facility that has been agreed to by the owner of the facility; the city, village or town in which the facility is located; and the city, village or town in which the facility will be relocated.

85.08(4m)(e)2.e. e. Rail line relocation or consolidation.

85.08(4m)(e)3. 3. Loans made under this paragraph shall be allocated by the department on bases that protect the public interest, including a cost-benefit analysis. A loan made under this paragraph may cover up to 100 percent of a project’s cost.

85.08(4m)(e)4. 4. The department shall administer this program and shall have all powers necessary and convenient to implement this paragraph, including the following powers:

85.08(4m)(e)4.a. a. To establish standards and schedules for railroad infrastructure improvement projects and to establish the specifications and provisions of a loan that is made to an eligible applicant.

85.08(4m)(e)4.b. b. To establish the level and period of rail service to be provided by the railroad in any loan agreement.

85.08(4m)(e)4.c. c. To negotiate and establish the financial participation required of an eligible applicant in any loan agreement.

85.08(4m)(e)4.d. d. To provide technical assistance to an eligible applicant.

85.08(4m)(e)5. 5. An application for a loan under this paragraph may not be made if an abandonment or discontinuance application is pending on the line or portion of line, or the line or portion of line on which the rail property improvements are located has been designated by the railroad to the federal surface transportation board on its system diagram map as anticipated to be the subject of an abandonment or discontinuance application within a 3-year period following the date of the application or the date on which the loan is scheduled, unless the secretary determines that this restriction may be waived for a particular application.

85.08(4m)(g) (g) Exemption from bond requirements. The secretary may exempt contracts involving the performance of labor or furnishing of materials for any public improvement or public work under the railroad rehabilitation and construction program of par. (d) or the loan program for freight rail infrastructure improvements under par. (e) from the performance and payment bond requirements of s. 779.14 if the secretary determines that:

85.08(4m)(g)1. 1. Adequate guarantees or warranties are provided for by contract;

85.08(4m)(g)2. 2. Adequate safeguards are provided by accounting and payment controls;

85.08(4m)(g)3. 3. Adequate security is available;

85.08(4m)(g)4. 4. Public benefits of proceeding with the project substantially outweigh the risk of waiving the performance and payment bond requirements of s. 779.14; and

85.08(4m)(g)5. 5. The project cannot proceed in a timely and efficient manner unless the performance and payment bond requirements of s. 779.14 are waived in whole or in part.

85.08(5) (5) Assistance to rural areas.

85.08(5)(a) (a) In this subsection, “rural municipality” means any of the following:

85.08(5)(a)1. 1. A city, town or village with a population of 4,000 or less.

85.08(5)(a)2. 2. A city, town or village that is located in a county with a population density of less than 150 persons per square mile.

85.08(5)(b) (b) In awarding assistance under this section, the department shall make a good faith effort to select eligible applicants that represent or will benefit various geographical regions and populations of this state, including rural municipalities.

85.08 History History: 1977 c. 29, 418; 1979 c. 34 ss. 912 to 932, 2102 (52) (b); 1979 c. 221; 1981 c. 20; 1983 a. 27; 1985 a. 29; 1987 a. 27; 1989 a. 31; 1991 a. 269; 1993 a. 16, 437, 491; 1995 a. 113, 201; 1999 a. 150 s. 672; 2005 a. 179; 2011 a. 32.

85.08 Cross-reference Cross-reference: See also ch. Trans 29, Wis. adm. code.

85.085 85.085 Private road crossings.

85.085(1b) (1b) In this section, “rehabilitated” means a significant rebuilding of railroad track that restores severely deteriorated track to a minimum service standard or, for track that is at or above a minimum service standard, that increases the service standard of the track.

85.085(1m) (1m) The department shall make payments from the appropriation under s. 20.395 (2) (bu) to fund the rebuilding of any private road crossing across the tracks of a rail transit commission within this state if the applicable tracks of the rail transit commission were rehabilitated during the 1992-93 fiscal year or thereafter, the private road crossing has not been rebuilt since the tracks were rehabilitated and the private road crossing user obtains a private road crossing permit from the applicable rail transit commission.

85.085(2) (2) The department shall make payments from the appropriation under s. 20.395 (2) (bu) to reimburse any private road crossing user for costs incurred by the user in financing the rebuilding of a private road crossing across the tracks of a rail transit commission within this state if the applicable tracks of the rail transit commission were rehabilitated during the 1992-93 fiscal year or thereafter and the private road crossing user has obtained a private road crossing permit from the applicable rail transit commission.

85.085(3) (3) The department shall not make any payment under this section unless the applicable private road crossing permit provides that the rail transit commission shall, at the user’s sole cost and expense, maintain, repair and renew the private road crossing. “Maintain, repair and renew” does not include any rebuilding of a private road crossing that is required because the applicable tracks have been rehabilitated.

85.085 History History: 1993 a. 354; 1995 a. 113.

85.09 85.09 Acquisition of abandoned rail property.

85.09(1) (1) Definitions. As used in this section:

85.09(1)(b) (b) “Municipality” means any city, village or town.

85.09(1)(c) (c) “State agency” means state departments and independent agencies.

85.09(1)(d) (d) “System diagram map” means the map required under federal law to be filed with the department by the railroad operating in this state that indicates rail lines in the process of abandonment, rail lines the railroad expects to abandon and the rail lines that are under study by the railroad for possible abandonment in the future.

85.09(2) (2) First right of acquisition.

85.09(2)(a) (a) The department of transportation shall have the first right to acquire, for present or future transportational or recreational purposes, any property used in operating a railroad or railway, including land and rails, ties, switches, trestles, bridges, and the like located on that property, that has been abandoned. The department of transportation may, in connection with abandoned rail property, assign this right to a state agency, the board of regents of the University of Wisconsin System, any county or municipality, or any transit commission. Acquisition by the department of transportation may be by gift, purchase, or condemnation in accordance with the procedure under s. 32.05, except that the power of condemnation may not be used to acquire property for the purpose of establishing or extending a recreational trail; a bicycle way, as defined in s. 340.01 (5s); a bicycle lane, as defined in s. 340.01 (5e); or a pedestrian way, as defined in s. 346.02 (8) (a). In addition to its property management authority under s. 85.15, the department of transportation may, subject to any prior action under s. 13.48 (14) (am) or 16.848 (1), lease and collect rents and fees for any use of rail property pending discharge of the department’s duty to convey property that is not necessary for a public purpose. No person owning abandoned rail property, including any person to whom ownership reverts upon abandonment, may convey or dispose of any abandoned rail property without first obtaining a written release from the department of transportation indicating that the first right of acquisition under this subsection will not be exercised or assigned. No railroad or railway may convey any rail property prior to abandonment if the rail property is part of a rail line shown on the railroad’s system map as in the process of abandonment, expected to be abandoned, or under study for possible abandonment unless the conveyance or disposal is for the purpose of providing continued rail service under another company or agency. Any conveyance made without obtaining such release is void. The first right of acquisition of the department of transportation under this subsection does not apply to any rail property declared by the department to be abandoned before January 1, 1977. The department of transportation may acquire any abandoned rail property under this section regardless of the date of its abandonment.

85.09(2)(b) (b) The first right of acquisition under this subsection applies only to the following property:

85.09(2)(b)1. 1. In unincorporated areas, any land measured 50 feet from the center line of each outermost track bed and any land between such tracks.

85.09(2)(b)2. 2. In incorporated areas, any land measured 33 feet from the center line of each outermost track bed and any land between such tracks.

85.09(2)(b)3. 3. Any property not included in subds. 1. and 2. that consists of a loading or unloading facility, a vehicular access facility, or a building that is, in the department’s judgment, suitable for a freight or rail passenger station.

85.09(3) (3) Determination of abandonment. For purposes of this section, rail property shall be deemed abandoned if par. (a) or (b) applies:

85.09(3)(a) (a) A certificate or approval of abandonment has been issued by the federal surface transportation board or federal court or any other federal or state agency having jurisdiction over the rail property.

85.09(3)(b) (b) A certificate or approval of abandonment is not required and the use of the rail property for railroad or railway purposes has been discontinued with the intent not to resume. Intent not to resume may be inferred from circumstances including, but not limited to, the following:

85.09(3)(b)1. 1. If the rail property is not used for railroad purposes for 2 consecutive years.

85.09(3)(b)2. 2. If the facilities on the rail property are removed or rendered unfit for service.

85.09(3)(b)3. 3. If the rail property is used for other than railroad purposes.

85.09(4) (4) Acquisition and conveyance. Upon its own initiative, the department may determine at any time whether the rail property is abandoned, and whether it is in the best interest of the state to acquire the rail property. Within 90 days after being requested by any state agency, any railroad or any county or municipality in which the rail property is located, the department shall, subject to sub. (5) (b), make a determination of the abandonment status and, if found to be abandoned, shall determine whether it is in the best interest of the public to acquire the rail property. If it is determined to acquire the rail property or any part or interest therein, the department shall, within 180 days of the determination of its abandoned status, or the interstate commerce commission’s final order permitting the abandonment, or the termination of any efforts to negotiate an agreement for continual operation of rail service on the line, whichever occurs last, determine the fair market value of the rail property and acquire the rail property at a price deemed reasonable by the department or make a relocation order under s. 32.05. In making its determination, the department shall consider long-range potential for use of the rail property for restoration of railroad service and for other transportation related purposes. The department shall solicit the opinions of appropriate state agencies, affected counties and municipalities and other interested persons. The department shall give due consideration to an expressed desire by a state agency or an affected county or municipality to acquire, in whole or in part, the rail property under consideration. Subject to any prior action under s. 13.48 (14) (am) or 16.848 (1) and subject to sub. (6), all or part of any interest in abandoned rail property acquired by the department under this section or under s. 66.941 (7), 1975 stats., may be subsequently conveyed to another state agency or a county or municipality for transportational purposes, recreational purposes, scenic purposes or for the purpose of constructing a correctional institution, or to a railroad for continued railroad transportation operations when the railroad has operated on the rail property for 5 years and the department may make such conveyances for such purposes. Any determination of the department under this section that rail property is not abandoned shall not preclude the undertaking of a subsequent investigation and determination concerning the same rail property or any portion thereof. If at any time subsequent to the acquisition of rail property under this section the department determines that the rail property is not suitable for transportational purposes, recreational purposes, scenic purposes or for the purpose of constructing a correctional institution, or that the rail property or any interest therein may be conveyed to any other person on terms which are not inconsistent with the potential use of the rail property for transportational purposes, recreational purposes, scenic purposes or for the purpose of constructing a correctional institution or which yield a benefit, including financial benefits, to the state which outweighs the benefit derived from the rail property if used for transportational purposes, recreational purposes, scenic purposes or for the purpose of constructing a correctional institution, the department may convey the rail property or such interest therein, subject to any prior action under s. 13.48 (14) (am) or 16.848 (1) and subject to sub. (6). The department shall give notice of its intention to make the conveyance, and state and local units of government shall have the first 6 months in which to exercise their opportunity to acquire the rail property or interest therein. The railroad from which the rail property was acquired shall have the next 6 months in which to exercise its opportunity to reacquire the rail property or interest therein.

85.09(4i) (4i) Disposal of rail property. The department, subject to any prior action under s. 13.48 (14) (am) or 16.848 (1), shall sell at public or private sale rail property acquired under sub. (4) when the department determines that the rail property is not necessary for a public purpose and, if real property, the real property is not the subject of a petition under s. 16.310 (2). Upon receipt of the full purchase price, the department shall, by appropriate instrument, transfer the rail property to the purchaser. 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 the appropriation under s. 20.395 (2) (bq).

85.09(4m) (4m) Relocation plan. The department is exempt from s. 32.25 (1) if the department determines that acquiring rail property under this section will not result in any displaced persons as defined in s. 32.19 (2) (e). The department shall file a statement of its determinations with the department of administration.

85.09(5) (5) Duties of railroads and others.

85.09(5)(a) (a) Any railroad which places a rail line or portion of a line on a system diagram map shall within 60 days of such action provide to the department one legible copy of each map in the railroad’s possession which shows rail property boundaries or engineering stations for the line involved. At the same time the railroad shall provide to the department all other pertinent information in its possession requested by the department relating to the title to the rail property covered by the line involved. The department shall determine the reasonable cost to the railroad of providing documents and information under this paragraph and shall reimburse the railroad in this amount. Any conveyance by the railroad made without providing the information required by this paragraph is void.

85.09(5)(b) (b) Any state agency, railroad, county or municipality which requests the department to make a determination of abandonment status and public interest in acquisition of rail property under sub. (4) shall provide a formal legal description of the rail property which is the subject of the request. The department may decline to take action on requests which do not contain an adequate description of the rail property involved. When the department provides a release of its first right to acquire rail property, the state agency, railroad, county or municipality which receives the release shall within 90 days have the release recorded by the register of deeds for each county in which the rail property is located.

85.09(6) (6) State rights subordinate to federal law. To the extent that the first or subsequent rights of acquisition under this section conflict with rights conferred by 49 USC 10905 (f) (4) or 10910 (h), the rights conferred by this section are subordinate to such federal rights and shall take effect only when consistent with 49 USC 10905 (f) (4) and 10910 (h).

85.09(7) (7) Rules. The department may adopt such rules as it deems necessary to accomplish the purposes of this section.