Chapter 88

88.07 History History: 1977 c. 135, 449; 1993 a. 456.

88.08 88.08 Costs in drainage proceedings.

88.08(1) (1) In all proceedings under this chapter involving a petition to the court, the court shall by order tax the taxable costs of the proceeding. If costs are taxed against the drainage board, they shall not go against the board members personally but shall be paid out of the district funds or from funds received from the petitioners unless the court orders otherwise.

88.08(2) (2) If a petition for organization of a drainage district is dismissed before the appointment of a drainage board in the county, the order taxing costs shall be entered against the petitioners and in favor of any person who advanced moneys, rendered services or incurred other liabilities in prosecuting or contesting such proceedings, for the amount of such moneys, services and incurred liabilities.

88.08(3) (3) If proceedings are dismissed in any case where a drainage board has been appointed in the county, the order taxing costs shall be entered against the petitioners and in favor of the board for all costs, expenses and liabilities incurred by the board or by any other person in prosecuting or contesting such proceedings and for the benefit of those who have rendered services or advanced or loaned money in prosecuting or contesting such proceedings.

88.08(4) (4) Before any order taxing costs is entered, a petitioner or the board or a person contesting the proceedings shall file with the clerk of the court a duly verified itemized statement of all costs, attorney fees, and other liabilities incurred in prosecuting or contesting such proceedings, upon which an order shall be issued requiring the petitioners to show cause why an order taxing costs should not be entered against them for the amount of costs, attorneys’ fees and other liabilities. Notice of hearing of such order to show cause shall be given to the petitioners as provided in s. 88.05 (3). Such order need not contain an itemized statement of such account, but shall state where such account is filed.

88.08(5) (5) The petitioners shall, between themselves, contribute to the payment of such costs in proportion to the number of acres of land owned by them within the boundaries of the district or proposed district at the time of filing the petition.

88.08 History History: 1977 c. 449; 2005 a. 253.

88.09 88.09 Certiorari; drainage board decisions. Any person subject to an order or rule of the drainage board may, within 30 days after publication of the order or rule, commence an action seeking the remedy available by certiorari. The court may not stay proceedings involving the order or rule when an action is commenced, but may, on application, on notice to the board and for cause, grant a restraining order. The board is not required to return the original papers acted upon by it, but may return certified or sworn copies of the papers. If necessary for the proper disposition of the matter, the court may take evidence, or appoint a referee to take evidence and report findings of fact and conclusions of law as the court directs, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify, the order or rule brought up for review.

88.09 History History: 1977 c. 187 s. 134; 1983 a. 219; 1993 a. 456.

88.10 88.10 Guardian ad litem; failure to appoint. Failure to appoint a guardian ad litem in a proceeding under this chapter is not jurisdictional, but when the failure is discovered a guardian ad litem shall be appointed and an order served upon the guardian ad litem to show cause why the minor or individual adjudicated incompetent should not be bound by all prior proceedings pertaining to the drainage district. On such a hearing the court shall enter such order or judgment as the facts warrant.

88.10 History History: 1991 a. 316; 1993 a. 456; 1999 a. 83; 2005 a. 387.

88.11 88.11 Assistance to drainage districts.

88.11(1) (1) The department of agriculture, trade and consumer protection shall employ an engineer, who shall be the state drainage engineer, to improve district operations. The department shall do all of the following:

88.11(1)(a) (a) Perform inspections in drainage districts to determine compliance with this section.

88.11(1)(b) (b) Review and approve district maintenance plans including ditch designs; installation and maintenance of structures; and plans for drainage, drainage control, soil conservation and water conservation, and require alteration of plans and existing structures in order to achieve and maintain compliance with performance standards established under par. (i).

88.11(1)(c) (c) Provide guidance to drainage boards and professional engineers in developing district surveys and maintenance plans.

88.11(1)(d) (d) Review and approve district designs for new ditches and structures, assist districts in developing hydrologic and hydraulic information about project effectiveness, and require alteration of the designs in order to achieve and maintain compliance with performance standards established under par. (i).

88.11(1)(e) (e) Coordinate district activities with the department of natural resources.

88.11(1)(f) (f) Assist districts in applying for permits under s. 88.31.

88.11(1)(g) (g) Provide guidelines for compliance with federal and state agricultural and conservation programs.

88.11(1)(h) (h) Establish, by rule, procedures for assessments and reassessments.

88.11(1)(i) (i) Establish, by rule, performance standards for drainage district structures, ditches, maintenance and operations, in order to minimize adverse effects on water quality. The performance standards shall be consistent with any requirements imposed by the department of natural resources under s. 88.31.

88.11(1)(j) (j) Prepare reports for the purposes of sub. (3).

88.11(1)(k) (k) Establish, by rule, a procedure for an investigation of whether a drainage district complies with this section and any requirements imposed by the department under this section.

88.11(1)(L) (L) In cooperation with the state drainage engineer, produce an educational pamphlet in 2009, and every 3 years thereafter, that describes the function of drainage districts, costs that may be assessed to persons whose property is located in a drainage district, and contact information for the state drainage engineer. The pamphlet shall be distributed, upon request, to drainage boards and to any person who requests the pamphlet.

88.11(1m) (1m) The department of agriculture, trade and consumer protection may perform any functions related to drainage districts that the department considers appropriate.

88.11(2) (2) The state drainage engineer shall provide technical assistance to improve district operations on the request of the department of natural resources, drainage board, landowners in the district or the judge.

88.11(3) (3) If the area proposed for drainage exceeds 200 acres in a single project, the board or the petitioners, before the hearing on the report under s. 88.34, 88.36 or 88.77, shall procure a report of the department of agriculture, trade and consumer protection on all of the following:

88.11(3)(a) (a) The location, design, feasibility and cost of the proposed outlet drains.

88.11(3)(b) (b) A general description of the additional drainage necessary to reclaim the land fully for general agricultural purposes, and its probable cost.

88.11(3)(c) (c) A general comparison of the benefits in the different parts of the district on the basis of the location and design of the proposed drains.

88.11(3)(d) (d) The physical features of the land to be drained.

88.11(4) (4) The board or the petitioners, with the aid of an engineer having the qualifications specified in s. 88.21 (5), shall make the necessary survey and evaluation as directed by the department of agriculture, trade and consumer protection for its report.

88.11(6) (6) A drainage district shall comply with the rules promulgated under this section and any requirements imposed by the department of agriculture, trade and consumer protection under this section.

88.11(7) (7) The department of agriculture, trade and consumer protection may issue a special order directing the immediate cessation of work regulated under this section until the necessary plan approval is obtained or until the project complies with this section.

88.11(8) (8) Any person who violates this section may be required to forfeit not less than $25 nor more than $500 for each violation. Each day of continued violation constitutes a separate offense.

88.11 History History: 1989 a. 31 ss. 2200d, 2200k; 1991 a. 309; 1993 a. 456; 2001 a. 103; 2007 a. 121.

88.11 Cross-reference Cross-reference: See also ch. ATCP 48, Wis. adm. code.

88.12 88.12 Proceedings when drainage area is in more than one county.

88.12(1) (1) If a proposed drainage district lies in more than one county, the petition for organization of the district shall be filed in the court of the county containing the largest acreage proposed for drainage by the petition, and the court of that county has jurisdiction of the organization of the drainage district.

88.12(2) (2) In cases affecting a multicounty drainage district, copies of all court orders and judgments shall be filed in the court of each of the other counties in which the drainage district is located.

88.12(3) (3) If a drainage district lies in more than one county, the drainage board of the county containing the largest acreage that is drained or proposed for drainage has jurisdiction of the operation of the drainage district. The drainage board that initially has jurisdiction of the operation of a drainage district retains that jurisdiction even if the drained acreage is subsequently changed, unless the drainage board that initially has jurisdiction agrees with the drainage board of any other county containing land of the drainage district to transfer jurisdiction.

88.12(4) (4) All moneys collected on behalf of the drainage district in the other counties shall be transmitted to the treasurer of the county in which the drainage board has jurisdiction.

88.12 History History: 1977 c. 449; 1993 a. 456.

88.13 88.13 Right to enter lands of drainage district. Whenever necessary for any purpose connected with the organization of a district or the construction, maintenance or repair of drains and other works, members of the board, representatives of the department of agriculture, trade and consumer protection, and persons intending to bid on or to whom contracts have been let for the construction of the works within a district or on former district lands transferred under s. 88.83 and their respective agents and employees may go upon any lands proposed for inclusion or included within a district or on adjoining lands or on former district lands transferred under s. 88.83, and are not guilty of trespass therefor but are liable for unnecessary damage caused to crops or structures.

88.13 History History: 1989 a. 31; 2017 a. 115.

88.14 88.14 Controversies between districts.

88.14(1) (1) If a controversy arises out of the relationship of 2 or more drainage districts that are subject to the jurisdiction of a single drainage board, the board may hold hearings and take whatever other action it considers necessary toward settling the controversy, including the issuance of orders.

88.14(2) (2) If a controversy arises out of the relationship of 2 or more drainage districts that are subject to the jurisdiction of 2 or more drainage boards, the boards shall attempt to settle the controversy and may hold hearings and take whatever other action they consider necessary to accomplish that objective. If the drainage boards are unable to settle the controversy, the matter shall be submitted to arbitration under ch. 788.

88.14 History History: 1977 c. 449; 1993 a. 456.

88.145 88.145 Limitation of damages and suits. In any action against a drainage district, drainage board, drainage board member, drainage board employee or an owner of land within the district who undertakes work approved by the drainage board, s. 893.80 is applicable and the limit on the amount recoverable by any person under s. 893.80 (3) applies to the drainage board, the members and employees of the drainage board, the drainage district and any owner of land within the district who undertakes work approved by the drainage board. This section does not apply to actions commenced under s. 19.37, 19.97 or 281.99.

88.145 History History: 1993 a. 456; 1995 a. 158; 1997 a. 27.

88.145 Note NOTE: 1993 Wis. Act 456, which created this section, contains extensive explanatory notes.

88.16 88.16 Notification requirements, engineering study.

88.16(1) (1) If a board takes any action which results in the hiring of an engineer to conduct a study that is related to the operation of a drain, or the district, the board shall send, as soon as possible, written notice of the action to all of the following:

88.16(1)(a) (a) The governing body of the city, village, or town that has jurisdiction over the area which is subject to the engineering study.

88.16(1)(b) (b) The governing body of the county that has jurisdiction over the area which is subject to the engineering study.

88.16(1)(c) (c) The governing body of any city or village that has extraterritorial jurisdiction over the area which is subject to the engineering study.

88.16(2) (2) As soon as possible after the engineering study is completed, the board shall send written notice to the governing bodies which received notice under sub. (1) informing them of the study’s completion and providing them information as to where the study may be reviewed.

88.16(3) (3) A board’s failure to notify under sub. (1) does not invalidate any decision made or action taken by the board.

88.16 History History: 2007 a. 121.

88.161 88.161 Transition for certain drainage districts. A drainage district operating under s. 88.16, 1989 stats., becomes a drainage district under this chapter as a matter of law on June 1, 1993. The records, assessments, funds and indebtedness of such a drainage district become the records, assessments, funds and indebtedness of the drainage district that takes its place. Before June 1, 1993, the circuit court of each county having a drainage district that has elected to operate under s. 88.16, 1989 stats., shall appoint a county drainage board under s. 88.17, if none exists, to take the place of the board of drainage commissioners of a district that elected to operate under s. 88.16, 1989 stats. The terms of office of the members of the new board commence on June 1, 1993.

88.161 History History: 1991 a. 309.

subch. II of ch. 88 SUBCHAPTER II

APPOINTMENT, POWERS AND DUTIES
OF DRAINAGE BOARD

88.17 88.17 Appointment and organization of drainage board.

88.17(1) (1) The court shall appoint a drainage board either upon the filing of a petition for organization of a drainage district under this chapter in a county that does not already have a drainage board or upon the filing of a petition by a landowner in a drainage district or the state drainage engineer for appointment of a drainage board in a county that already has a drainage district. The board shall consist of 3 persons. One member of the original board shall be appointed for a term of one year, one for 2 years and one for 3 years. Upon the expiration of the term of office of a board member, the court shall appoint a successor for a 3-year term in the same manner as the original appointment was made.

88.17(2) (2) A drainage board may by rule, after the original board is appointed, increase the number of members to 5. In the rule increasing the number of members, the board shall provide for staggered terms, with all members serving terms of 5 years. After increasing the number of board members, the board may, by rule, reduce the number of members to 3, but only if the size of the board is reduced as vacancies occur on the board.

88.17(2d) (2d) The board shall notify the court if any position on the board becomes vacant and the court shall appoint a successor. The board shall notify the court if the size of the board is increased under sub. (2) and the court shall appoint the additional board members. If a position on the board remains vacant for more than 6 months, either the state drainage engineer or any landowner in a drainage district subject to the jurisdiction of the board may petition the court to appoint a successor.

88.17(2h) (2h) The court shall appoint drainage board members from among persons recommended by any of the following:

88.17(2h)(a) (a) The committee on agriculture and extension education created under s. 59.56 (3) (b), which shall recommend at least 3 persons for each position to be filled.

88.17(2h)(b) (b) At least 3 landowners owning property in a drainage district that is subject to the jurisdiction of the drainage board.

88.17(2h)(c) (c) Local or statewide agriculture, engineering, local government, or real estate organizations, including the Wisconsin Potato and Vegetable Growers Association, the Wisconsin State Cranberry Growers Association, the Wisconsin Farm Bureau Federation, the Wisconsin Farmers Union, the Dairy Business Association, and the Wisconsin Dairy Products Association.

88.17(2h)(d) (d) The department of agriculture, trade and consumer protection, which may recommend persons who have engineering experience related to water resources and agriculture.

88.17(2p) (2p) In appointing members, the court shall attempt to assure that at least one of the members serving on the drainage board at any time is an experienced farmer who is familiar with drainage and that another of the members is familiar to some extent with drainage engineering.

88.17(2r) (2r) 

88.17(2r)(a) (a) If the board has jurisdiction of a drainage district that is located entirely or partially within the corporate limits of a city or village and a city or village the corporate limits of which contains any portion of a drainage district that is under the jurisdiction of the board notifies the court that the city or village will recommend a drainage board member, all of the following apply:

88.17(2r)(a)1. 1. Notwithstanding subs. (1) and (2), the board shall consist of 5 persons. If the number of members of a board is increased under this paragraph, the board shall provide by rule for staggered terms, with all members serving terms of 5 years.

88.17(2r)(a)2. 2.

88.17(2r)(a)2.a. a. Notwithstanding subs. (1) and (2h), the court shall appoint one drainage board member from the list of persons recommended under this subd. 2. a. by cities and villages the corporate limits of which contains any portion of a drainage district that is under the jurisdiction of the board. Each city and village may recommend a member and, if the city or village recommends a member, shall recommend the chief executive of the city or village or the designee of the chief executive. In appointing a member under this subd. 2. a., the court shall attempt to assure that the member has experience in farming, familiarity with drainage, or familiarity with drainage engineering.

88.17(2r)(a)2.b. b. If drainage districts under the jurisdiction of the board are located entirely or partially within the corporate limits of more than one city or village, the appointment under subd. 2. a. shall rotate among the cities and villages.

88.17(2r)(a)2.c. c. Notwithstanding subs. (7) and (8), a member appointed under this paragraph may not be reimbursed for expenses incurred in the performance of the member’s duties and may not receive a per diem.

88.17(2r)(b) (b) If the position under par. (a) 2. becomes vacant and no city or village the corporate limits of which contains any portion of a drainage district that is under the jurisdiction of the board recommends a drainage board member under par. (a) 2., the board may, by rule, reduce the number of members to 3, but only if the size of the board is reduced as vacancies occur on the board.

88.17(2t) (2t) A drainage board member shall serve until a successor is appointed and qualified.

88.17(3) (3) Each member of the board shall take and file the official oath.

88.17(4) (4) Ownership of or interest in lands sought to be drained does not disqualify a person from acting as a member of the drainage board, but any board member may request the court to, and the court may in its discretion, appoint a suitable person to act in a member’s place when the board is considering matters pertaining to the particular drainage district in which the member is interested.

88.17(5) (5) When all its members have been duly sworn and qualified, the drainage board is a permanent body corporate and is subject to all rules of law applicable to public corporations.

88.17(6) (6) The board shall organize by election one of its members president and another of its members secretary. A majority of the board constitutes a quorum to do business. In the absence of a quorum, any member present may adjourn any meeting and make announcement thereof.