Chapter 87

87.11(4) (4) If it shall develop that the total cost of constructing the improvement is less than the total amount available for the payment of such cost, the excess, except as provided in s. 87.13, shall constitute the commencement of the fund provided for in s. 87.14 for the maintenance and operation of the improvement.

87.11 History History: 1971 c. 211; 2003 a. 33.

87.12 87.12 Flood control board, creation, duties, powers, pay, funds.

87.12(1) (1) If the department directs the work of constructing the improvement to proceed as provided in s. 87.07, it shall certify the fact of the making of such order to the governor, together with a statement of the county in which the major part of the proposed improvement, as determined by the estimated cost thereof, is to be located and the county in which the largest amount of property to be benefited, as determined by the equalized assessed value thereof, is located. The governor shall thereupon appoint a board to take charge of the construction and the maintenance and operation of the improvement, whose membership shall be determined as follows:

87.12(1)(a) (a) One member to be certified by the board of supervisors of the county in which the major part of the proposed improvement is located;

87.12(1)(b) (b) One member to be certified by the board of supervisors of the county in which the largest amount of property to be benefited is located;

87.12(1)(c) (c) One member to be chosen by the governor from the drainage area.

87.12(2) (2) The board so appointed shall serve for a term of 6 years and until their successors are duly appointed and qualified. Succeeding appointments shall be made in the same manner as original appointments. Any vacancy occurring by reason of the death, resignation or removal from the state, or permanent disability of any person thus appointed, shall be filled in the manner provided for the original appointment of such person. The county board making any such certification of an appointee may at any time certify to the governor the name of another appointee to succeed him or her, and the governor shall thereupon name such new appointee as a member of the board and the tenure of the former appointee shall terminate. The governor may at any time appoint another person to succeed the person chosen by the governor on said board and the tenure of the latter shall thereupon terminate.

87.12(3) (3) The board thus constituted shall be a body corporate and shall be known as “ .... Flood Control Board,” the name to commence with the name of the river or body of water defined by the department pursuant to s. 87.04 as being the principal river or body of water involved in the project. The board shall organize by the election of one of its members as chairperson and one as treasurer, who shall be removable at the pleasure of the board. It shall also appoint a secretary, who need not be a member of the board and who shall likewise be removable at pleasure.

87.12(4) (4) Each member of the board shall file the official oath with the department, and the treasurer of the board shall file with the department the official bond, which shall be approved by the department and shall be in amount as follows: Up to the completion of the construction of the improvement, not less than 50 percent of the total cost thereof as estimated by the department; for the first 18 months thereafter, not less than 50 percent of the cost of operation and maintenance during said period as estimated by the department; and thereafter, not less than 50 percent of the annual cost of maintenance and operation as certified by the board pursuant to s. 87.14, except that in case of an addition to or reconstruction pursuant to s. 87.15, and during the period of such work such bond shall be in an additional amount not less than one-half the cost of such addition or reconstruction as estimated by the department.

87.12(5) (5) It shall be the duty of the flood control board to construct the proposed improvement by contract according to the plans and specifications prescribed by the department. No contract for such work shall be let or indebtedness therefor incurred until there shall actually be in the hands of the several treasurers, as provided in s. 87.10, or in the process of collection, the entire sum called for in said section, except the deferred installments, if any, of special assessments, or the amount therefor is assured by contract, lease, sale or lease with option to purchase, as provided in s. 87.18. The board shall have authority to require the treasurers of the public corporations to certify from time to time the amounts actually on hand for such purpose, the amounts in process of collection, and the amounts to be collected upon deferred installments of special assessments. The board shall apply for and obtain all necessary permits from the federal government. It shall have the power to enter upon any land for the purpose of making necessary examinations and surveys, and this right shall extend to its duly authorized assistants, representatives and employees, including any contractor engaged to do any part of the work of constructing the improvement, together with the representatives and employees of any such contractor; but any such contractor shall be responsible for any damage the contractor may do. The board has power to borrow money for the construction of a reservoir and to issue its corporate bonds for the amount so borrowed, securing the same by a mortgage on the reservoir property. The rate of interest shall not exceed 6 percent nor shall the time of repayment exceed 30 years.

87.12(6) (6) The board shall have the power to institute and prosecute in the manner provided in ch. 32 of the statutes such eminent domain proceedings as may be necessary in the construction of said improvement. When necessary for that purpose, this right of eminent domain shall be dominant over the rights of eminent domain of public or private corporations or governmental agencies. The board shall also have the power to acquire any lands or interest therein necessary for the aforesaid purpose, by gift, purchase or lease. Any title acquired by condemnation or gift, purchase or lease shall be held in the name of the flood control board in trust for the several towns, villages and cities and contributing, as provided in s. 87.10 (1) (c) and (d), in proportion to the amounts of their several contributions. The board shall have the power to employ engineers, attorneys, agents, assistants, clerks, employees and laborers as it may deem advisable for the proper execution of its duties, and to fix their compensation.

87.12(7) (7) Each member of the board shall receive compensation at the rate of $10 for each day or major part thereof actually devoted to the performance of duties as such member and shall also be reimbursed the actual necessary expenses incurred by the member in the performance of such duties, upon verified statements in each case which shall be duly audited by the board and filed with the secretary.

87.12(8) (8) All moneys of the board shall be deposited in credit unions, savings banks, savings and loan associations or state or national banks designated by the board, and shall be drawn out only upon checks, share drafts or other drafts signed by the chairperson and the treasurer of the board. As funds are required by the board for the work of constructing the improvement, the board shall by resolution requisition the amounts required from the treasurers of the public corporations holding money available for that purpose under s. 87.10, and each treasurer shall pay the amount requisitioned to the board. The amount to be requisitioned at any time from any treasurer shall bear the same proportion to the total amount requisitioned at that time, as the amount certified by the treasurer under this section to be on hand and available bears to the total amount certified by all of the treasurers to be on hand and available.

87.12 History History: 1983 a. 368; 1991 a. 221, 316; 1993 a. 184.

87.13 87.13 Disbursements by board. All sums which shall be deposited with the secretary of administration under s. 87.07 (4) for the construction of the improvement shall be paid by the secretary of administration to the flood control board upon requisitions from said board. If any moneys, other than those for operation and maintenance during the first 18 months, remain unexpended in the hands of the flood control board or subject to their requisition after the completion of the construction of the improvement, and if the funds for construction of the improvement shall have been in part raised through voluntary contributions under s. 87.07 (4) or 87.11 (2), the amounts thus contributed, or such proportion thereof as the funds remaining in the hands of the board or subject to its requisition will pay, shall be returned to the persons or corporations who made such voluntary contributions, in proportion to the amounts contributed by them.

87.13 History History: 2003 a. 33.

87.14 87.14 Operation and maintenance. The flood control board is authorized to sell, lease, or lease with power to purchase, any reservoir proposed to be constructed, in the process of construction or completed, to a duly organized river improvement company as defined by s. 182.016, on such terms and conditions as are approved by the department of natural resources as hereinafter provided. Unless so leased or sold it shall be the duty of the flood control board to maintain and operate said improvement. The cost of operation and maintenance during the period intervening between the completion of said improvement and the date when funds provided under this section become available shall be paid from the funds provided for maintenance pursuant to the estimate made by the department as provided in s. 87.07 (3). Prior to the first day of November in each year the flood control board shall certify to the clerk of each town, village and city in which lands to be benefited by the improvement are located an estimated budget, detailed as far as practicable, of the cost of operation and maintenance of said improvement for the succeeding calendar year, together with the amount due upon any judgments outstanding against the board, except those judgments from which the board has appealed or intends to appeal, and shall certify at the same time the portion of such cost to be borne by each such town, village and city. This shall be determined in the same manner and according to the same proportions as provided in s. 87.10 (1) (c). It shall thereupon become the duty of each such town, village and city to include in its next succeeding tax levy the amount so certified and to forward such amount, on or before March 15 following, to the flood control board.

87.15 87.15 Repairs, replacements and extensions; procedure. Whenever the flood control board shall determine and certify that repairs or replacements are necessary to such an extent as to amount to a partial reconstruction of the improvement rather than ordinary maintenance, or whenever said board shall determine that material additions, extensions or betterments to said improvement are necessary, the board shall file a petition with the department setting forth the necessity for such repairs, replacements, additions, extensions or betterments, and thereupon the department shall proceed to make the same determinations and certifications as in the case of an original petition for the construction of the improvement, except that the enumeration of lands or other property benefited and of the political subdivisions included within the drainage area shall be the same as in the original order for the construction of the improvement, unless the department shall affirmatively find that changes in such enumeration are necessary because of errors in the original findings.

87.16 87.16 Court proceedings given preference. Any action brought in any court for the purpose of enjoining, preventing or interfering with the construction, repairing, reconstruction, operation or maintenance of the improvement ordered by the department, or any part thereof, except actions to review the orders of the department under ss. 87.01 to 87.17, shall be given preference in the circuit court. An appeal shall be given preference.

87.16 History History: 1977 c. 187, 449; 1983 a. 219.

87.16 Note Judicial Council Note, 1983: This section is amended by repealing the appeal deadline of 30 days from entry of the order or judgment for greater uniformity. An appeal must be initiated within the time specified in s. 808.04 (1), stats. The provisions requiring preferential court treatment are harmonized and standardized with similar provisions in the statutes. [Bill 151-S]

87.17 87.17 Trespass, penalty. Any person who shall willfully, maliciously or wantonly destroy, injure, remove, meddle or tamper with any portion of the improvements constructed pursuant to ss. 87.01 to 87.17, whether during construction or after completion of the same, or shall willfully, maliciously or wantonly obstruct, interfere with or hamper the flood control board or any of its assistants, agents, servants or employees, or any contractor employed by it in the work of constructing, repairing, reconstructing, operating or maintaining the same, shall be guilty of a misdemeanor and upon conviction shall be punished by imprisonment in the county jail not more than one year, or by fine not exceeding $1,000, or both.

87.18 87.18 Lease, sale and lease with option to purchase the project. Whenever the flood control project consists of a storage reservoir and authority to create, operate and maintain a reservoir on the river affected by such storage reservoir is vested in a duly organized river improvement company as defined by s. 182.016, and the petitioners file with the department of natural resources a petition and a proposed contract with such improvement company for a lease, sale, or lease with option to purchase said reservoir, and the department finds the terms and conditions of such contract are sufficient to assure the payment of the amount the board will be obligated to pay for the cost of the reservoir and the maintenance and operation of the same, and the project will secure effective flood control and promotion of the public welfare, then notices, proceedings and assessments provided by ss. 87.04 to 87.12 are not required. The department, however, shall make findings as required by s. 87.05 and shall order that the flood control board be appointed and shall so certify to the governor as provided by s. 87.12. The governor shall thereupon appoint the board as provided in said s. 87.12. The proposed contract filed with the department by petitioners for the sale, lease, or lease with option to purchase said reservoir property shall not be binding upon the board so appointed unless the board approves such contract. Upon approval the board shall so report to the department and file with it a final contract executed by the board and lessee or purchaser. The department has authority to approve or disapprove such contract. If the department approves such contract, then it shall be final and the department shall thereupon order the board to proceed with the work. When such reservoir property is sold and the purchase price has been fully paid and any indebtedness assumed by the purchaser has been paid and discharged, including the fees and expenses of the board, and the department so finds, the said board shall thereupon be dissolved by order of the department.

87.30 87.30 Floodplain zoning.

87.30(1) (1) State powers.

87.30(1)(a) (a) If any county, city or village does not adopt a reasonable and effective floodplain zoning ordinance within one year after hydraulic and engineering data adequate to formulate the ordinance becomes available, the department shall, upon petition of an interested state agency or a municipality or upon its own motion as soon as practicable and after public hearing, determine and fix by order the limits of any or all floodplains within a county, city or village within which serious damage may occur. Thereafter the department shall as soon as practicable after public hearing adopt a floodplain zoning ordinance applicable to a county, city or village, except that no floodplain zoning ordinance may be enacted unless the hydraulic and engineering studies necessary to determine the floodway or floodplain limits, or both, if both limits are deemed necessary by the department, have been made at state or federal expense. If the department utilizes hydraulic and engineering studies previously completed, the department shall be responsible for ensuring that the studies are reasonable and accurate. Thirty days’ notice of all hearings on floodplain determination or zoning before the department shall be given to the county, city or village clerk, the clerks of all towns where lands may be affected and to the department of transportation. Exhibits and testimony shall be a part of the official record. Failure of a county, city or village to adopt a floodplain zoning ordinance for an area where appreciable damage from floods is likely to occur or to adopt an ordinance which will result in a practical minimum of flood damage in an area shall be prima facie proof of the necessity for action specified under this paragraph by the department. The department shall make a decision in writing of insufficiency of any county, city or village floodplain zoning ordinance before adopting an ordinance superseding a county, village or city ordinance. All orders of the department under this subsection which either fix the limits of floodplains or enact local floodplain zoning ordinances shall, when they are in final draft form and before they are issued, be referred to the appropriate committees of the legislature, where the procedure under s. 227.19 shall apply. Section 227.15 does not apply to the orders of the department under this section. Orders of the department under this section shall, after becoming effective, be deemed rules for purposes of s. 227.26, and may be suspended by the joint committee for review of administrative rules.

87.30 Note NOTE: Chapter 437, laws of 1977, which amended par. (a), contained an extensive note explaining the amendment. See the 1977 session law volume.

87.30(1)(b) (b) All final orders, determinations, or decisions made under this subsection shall be subject to review under ch. 227 and be effective 20 days after the same have been served unless such order, determination, and decision specifies a different date upon which the same shall be effective. Such floodplain determination and zoning ordinance shall be of the same effect as if adopted by the county, city, or village. Thereafter it is the duty of the county, city, village, and town officials to administer and enforce the ordinance in the same manner as if the county, city, or village had adopted it. Except as provided in par. (e), floodplain determinations and zoning ordinances so adopted may be modified by the county, city, or village concerned only with the written consent of the department. Except as provided in par. (e), nothing in this subsection may be construed to prohibit a county, city, village, or town from adopting a floodplain ordinance more restrictive than that adopted by the state.

87.30(1)(c) (c) Except as provided under par. (a), the cost of such floodplain determination and ordinance promulgation and enforcement by the state shall be assessed against the county, city or village concerned and collected in substantially the same manner as other taxes levied by the state.

87.30(1)(d) (d) For an amendment to a floodplain zoning ordinance that affects an activity that meets all of the requirements under s. 281.165 (2), (3) (a), or (4) (a), the department may not proceed under this subsection, or otherwise review the amendment, to determine whether the ordinance, as amended, is insufficient.

87.30(1)(e) (e)

87.30(1)(e)1. 1. Except as provided in subd. 4., on the request of a property owner who has obtained a letter of map amendment from the federal emergency management agency under 44 CFR 70, the county, city, village, or town in which the property is located shall amend its floodplain determination as necessary to conform with the letter of map amendment. After amending its floodplain determination, the county, city, village, or town may not enforce a floodplain zoning ordinance with respect to that specific property or area to the extent that the ordinance is contrary to the letter of map amendment.

87.30(1)(e)2. 2. A property owner requesting an amendment to a floodplain determination under subd. 1. shall submit to the county, city, village, or town the letter of map amendment and all supplementary documents submitted to the federal emergency management agency as part of the application for the letter of map amendment.

87.30(1)(e)3. 3. The department shall consent to an amendment to a floodplain determination that is necessary to conform with a letter of map amendment under subd. 1.

87.30(1)(e)4. 4. Subdivision 1. does not apply to a county, city, village, or town that participates in the community rating system under the National Flood Insurance Program if amending a floodplain determination to conform with a letter of map amendment would conflict with eligibility requirements under the community rating system.

87.30(1d) (1d) Improvements to nonconforming buildings.

87.30(1d)(a) (a) In this subsection:

87.30(1d)(a)1. 1. “Nonconforming building” has the meaning specified by rule by the department for purposes of floodplain zoning under this section and includes a building with a nonconforming use.

87.30(1d)(a)2. 2. “Nonconforming use” has the meaning specified by rule by the department for purposes of floodplain zoning under this section.

87.30(1d)(a)3. 3. “Nonflood disaster” means a fire or an ice storm, tornado, windstorm, mudslide or other destructive act of nature, but excludes a flood.

87.30(1d)(b) (b) For nonconforming buildings that are damaged or destroyed by a nonflood disaster a floodplain zoning ordinance shall permit the repair, reconstruction or improvement of any such nonconforming building, in order to restore it after the nonflood disaster except as provided in par. (c).

87.30(1d)(c) (c) A floodplain zoning ordinance may not permit the repair, reconstruction or improvement of a nonconforming building if the nonconforming building, after repair, reconstruction or improvement, will fail to meet one or more of the minimum requirements applicable to such a nonconforming building under 42 USC 4001 to 4129 or under the regulations promulgated thereunder.

87.30(1d)(d) (d) If the department regulates or prohibits repair, reconstruction, or improvement of a nonconforming building, the department may not do so based on cost if, as a result of repair, reconstruction, or improvement authorized under county, city, village, or town regulations, all of the following apply:

87.30(1d)(d)1. 1. The entire nonconforming building is or will be permanently changed to comply with the applicable requirements under 42 USC 4001 to 4129 or the regulations promulgated under those provisions.

87.30(1d)(d)2. 2. Any living quarters in the nonconforming building are or will be at or above the flood protection elevation, as established by the department.

87.30(1g) (1g) Regulation of floodproofed basements. The department may not promulgate any rule or impose any restriction that does any of the following:

87.30(1g)(a) (a) Results in an ordinance or other regulation containing provisions for floodproofed residential basements that are more restrictive than those imposed by the federal emergency management agency.

87.30(1g)(b) (b) Allows the department to deny an exception for such basements if the federal emergency management agency has granted an exception under 44 CFR 60.6.

87.30(1m) (1m) Jurisdiction over drainage ditches limited.

87.30(1m)(ag) (ag) Notwithstanding any other provision of law or administrative rule promulgated thereunder, a floodplain zoning ordinance required under sub. (1) does not apply to lands adjacent to farm drainage ditches if all of the following apply:

87.30(1m)(ag)1. 1. Such lands are not within the floodplain of a natural navigable stream or river.

87.30(1m)(ag)2. 2. Those parts of the drainage ditches adjacent to these lands were nonnavigable streams before ditching.

87.30(1m)(ag)3. 3. Such lands are maintained in nonstructural agricultural use.

87.30(1m)(am) (am) Notwithstanding any other provision of law or administrative rule promulgated thereunder, a floodplain zoning ordinance required under sub. (1) does not apply to lands adjacent to farm drainage ditches if all of the following apply, except to the extent necessary for the municipality to which the floodplain zoning ordinance applies to maintain eligibility for participation in the National Flood Insurance Program:

87.30(1m)(am)1. 1. The farm drainage ditch is subject to the jurisdiction of a drainage district under ch. 88.

87.30(1m)(am)2. 2. The disposal of material in a floodplain is within the drainage district corridor under s. 88.74.

87.30(1m)(am)3. 3. The lands adjacent to the corridor are maintained in nonstructural agricultural use or other nonstructural use.

87.30(1r) (1r) Land outside of floodplains. This section does not authorize a county to impose a requirement, condition, or restriction on land that is not within any floodplain in the county.

87.30(2) (2) Enforcement and penalties.

87.30(2)(a) (a) Except as provided in par. (b), every structure, building, fill, or development placed or maintained within any floodplain in violation of a zoning ordinance adopted under this section, or s. 59.69, 61.35 or 62.23 is a public nuisance and the creation thereof may be enjoined and maintenance thereof may be abated by action at suit of any municipality, the state or any citizen thereof. Any person who places or maintains any structure, building, fill or development within any floodplain in violation of a zoning ordinance adopted under this section, or s. 59.69, 61.35 or 62.23 may be fined not more than $50 for each offense. Each day during which such violation exists is a separate offense.

87.30(2)(b) (b) Paragraph (a) does not apply to a structure, building, fill, or development placed or maintained as part of a mining operation covered by a mining permit under s. 295.58 except to the extent that regulation of the placement or maintenance of the structure, building, fill, or development is required for compliance with a floodplain zoning ordinance as provided under s. 295.607 (3).

87.30 History History: 1971 c. 164; 1975 c. 232, 301, 422; 1977 c. 29 s. 1654 (8) (c); 1977 c. 437, 447; 1979 c. 34 s. 2102 (58) (b); 1981 c. 339; 1985 a. 182; 1995 a. 201, 311, 455; 1999 a. 9; 2011 a. 6; 2013 a. 1; 2015 a. 178; 2017 a. 115, 242; 2019 a. 175.

87.30 Cross-reference Cross-reference: See also ch. NR 116, Wis. adm. code.

87.30 Annotation A flood plain zoning ordinance adopted by the Department of Natural Resources under sub. (1) was a “rule” under s. 227.01. Citizens for Sensible Zoning, Inc. v. DNR, 90 Wis. 2d 804, 280 N.W.2d 702 (1979).

87.30 Annotation The trial court erred when it placed the burden on the Department of Natural Resources to prove that the city’s ordinance was not reasonable and effective. City of La Crosse v. DNR, 120 Wis. 2d 168, 353 N.W.2d 68 (Ct. App. 1984).

87.30 Annotation An area need not be navigable to be a lakebed. The ordinary high water mark was determinative. State v. Trudeau, 139 Wis. 2d 91, 408 N.W.2d 337 (1987).

87.30 Annotation There is nothing in the Department of Natural Resources’ general grant of authority to regulate floodplains that permits the agency to write rules that nullify the discretion over variance decisions that the legislature has specifically committed to local boards of adjustment. To the extent that a department rule prohibits county boards of adjustment from granting variances from flood elevation requirements when the proper statutory standards for variances have otherwise been met, it is invalid. State v. Outagamie County Board of Adjustment, 2001 WI 78, 244 Wis. 2d 613, 628 N.W.2d 376, 98-1046.

87.30 Annotation County floodplain zoning ordinances adopted by the Department of Natural Resources under this section do not need approval of town boards in order to become effective within all unincorporated areas of the county. 62 Atty. Gen. 264.

87.30 Annotation The necessity of zoning variance or amendments notice to the Department of Natural Resources under the shoreland zoning and navigable waters protection acts. Whipple, 57 MLR 25.

87.30 Annotation The public trust doctrine. 59 MLR 787.

87.30 Annotation Floodplain, wetland and shoreland regulation in Wisconsin. Johnson. WBB May 1988.

87.304 87.304 Regulation of historic property in floodplains.

87.304(1) (1) Definitions. In this section:

87.304(1)(a) (a) “Historic property” means any building, structure or object that is any of the following:

87.304(1)(a)1. 1. Individually listed on the national register of historic places in Wisconsin or the state register of historic places.

87.304(1)(a)2. 2. Included in a district which is listed on the national register of historic places in Wisconsin and has been determined by the state historical society to contribute to the historic significance of the district.

87.304(1)(a)3. 3. Individually listed on the list of locally designated historic places under s. 44.45.

87.304(1)(b) (b) “National register of historic places in Wisconsin” has the meaning given in s. 44.31 (5).

87.304(2) (2) Treatment of historic property.

87.304(2)(a) (a) The department shall by rule promulgate procedures for use by cities, villages and counties in doing all of the following:

87.304(2)(a)1. 1. Issuing variances to floodplain zoning ordinances that will be consistent with 44 CFR 60.6 but that will allow repair or rehabilitation of historic properties in floodplains to the maximum extent feasible.

87.304(2)(a)2. 2. Providing sufficient measures for public safety and protection for property in floodplains.

87.304(2)(b) (b) The rules promulgated under par. (a) may include different procedures for floodway and flood-fringe areas.

87.304 History History: 1991 a. 39; 2007 a. 96.

87.305 87.305 Use of certain facilities on St. Feriole island.

87.305(1) (1) Department approval. Notwithstanding s. 87.30 or any rule promulgated, order issued or ordinance adopted under that section, the department shall authorize the connection of a sanitary sewer line from the sewerage treatment plant in the city of Prairie du Chien and connection of the public water system of the city of Prairie du Chien to the railroad depot and the Dousman hotel on St. Feriole island and shall authorize historic use of the Dousman hotel as a hotel, as defined under s. 97.01 (7), if all of the following conditions are met:

87.305(1)(a) (a) The department approves the developer’s plans and specifications for floodproofing the railroad depot and the Dousman hotel.

87.305(1)(b) (b) The department approves the city of Prairie du Chien’s flood warning system and emergency evacuation plan and the city of Prairie du Chien agrees to test the evacuation plan at least once each year.