Chapter 88

88.17 Note NOTE: 1993 Wis. Act 456, which substantially affected this section, contains extensive explanatory notes.

88.172 88.172 Limited liability of drainage board members.

88.172(1) (1) Except as provided in subs. (2) and (3), a drainage board member is not liable to any other person for damages, settlements, fees, fines, penalties or other monetary liabilities arising from a breach of, or failure to perform, any duty resulting solely from his or her status as a drainage board member, unless the person asserting liability proves that the breach or failure to perform constitutes any of the following:

88.172(1)(a) (a) A willful failure to deal fairly with any person in connection with a matter in which the drainage board member has a material conflict of interest.

88.172(1)(b) (b) A violation of criminal law, unless the drainage board member had reasonable cause to believe that his or her conduct was lawful or no reasonable cause to believe that his or her conduct was unlawful.

88.172(1)(c) (c) A transaction from which the drainage board member derived an improper personal profit.

88.172(1)(d) (d) Willful misconduct.

88.172(2) (2) Except as provided in sub. (3), this section does not apply to any of the following:

88.172(2)(a) (a) A civil or criminal proceeding brought by or on behalf of any governmental unit, authority or agency.

88.172(2)(b) (b) A proceeding brought by any person for a violation of state or federal law if the proceeding is brought under an express private right of action created by state or federal statute.

88.172(3) (3) Subsection (2) does not apply to a proceeding brought by a governmental unit, authority or agency in its capacity as a private party or contractor.

88.172 History History: 1993 a. 456.

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

88.18 88.18 County treasurer to serve as treasurer of drainage districts.

88.18(1) (1) The county treasurer shall serve as treasurer of all drainage districts under the jurisdiction of the drainage board. All moneys collected for or payable to any such drainage district shall be turned over to or paid to the county treasurer and shall be paid out by the treasurer only upon proper warrants of the drainage board. The county treasurer may retain for the benefit of the county a portion of the interest received on drainage district funds held by the county treasurer, not to exceed the cost to the county treasurer of providing services to the drainage board under this chapter, the cost to the zoning administrator of maintaining drainage board records under s. 88.19 and the cost to the zoning administrator of providing copies of drainage board records to the drainage board.

88.18(2) (2) The county treasurer shall keep a separate account for each drainage district in which the treasurer shall charge such district with all amounts paid out on its behalf pursuant to sub. (1) and shall credit the district with:

88.18(2)(a) (a) All sums received in payment of drainage assessments of that district, including penalties and interest on the sums.

88.18(2)(e) (e) All other sums received on account of the drainage district other than interest received on drainage district funds held by the county treasurer.

88.18(3) (3) The drainage board may appoint a treasurer who shall act as the deputy of the county treasurer. The drainage board may assign any part or all of the county treasurer’s duties under this chapter to the drainage board treasurer. The drainage board treasurer shall be reimbursed for actual and reasonable expenses incurred in the performance of the treasurer’s duties in the same manner as provided for drainage board member expenses under s. 88.17 (8). The drainage board shall require a bond from the drainage board treasurer in an amount, set by the board, that is sufficient to exceed the greatest amount of funds expected to be held in his or her custody, and with the sureties that the drainage board requires. The bond shall be conditioned in substantially the same form as the ordinary bond required from the county treasurer, with the necessary changes.

88.18 History History: 1987 a. 378; 1991 a. 316; 1993 a. 456.

88.19 88.19 Board to keep records.

88.19(1) (1) It is the duty of the secretary of the board to keep records of all drainage proceedings. The secretary shall also maintain a minute book in which the secretary shall enter the minutes of the board meetings. The secretary shall be compensated for such services under s. 88.17 (7) and (8).

88.19(2) (2) The secretary of the board shall keep a complete record of the assessed lands in each district under the board’s jurisdiction. Such records shall be so arranged that they will readily show, for each parcel of land assessed, the latest confirmed assessment of benefits and the total assessments for costs which have been made against such lands, with adequate space provided for noting all payments of assessments for costs or installments thereof. The secretary of the board shall periodically check with the county treasurer to determine what drainage assessments or installments thereof have been paid and shall note such payments in the records required to be kept pursuant to this subsection.

88.19(3) (3) The secretary of the board is legal custodian of all drainage records and the secretary shall comply with subch. II of ch. 19. Upon request for any of the drainage records by the county treasurer, the secretary of the board shall furnish the county treasurer with a copy of the records specified in sub. (2).

88.19(4) (4) 

88.19(4)(a) (a) Subject to pars. (b) and (d), and subject to criteria and standards under rules that the department of agriculture, trade and consumer protection shall promulgate, all of the following shall occur:

88.19(4)(a)1. 1. The drainage board secretary shall distribute drainage board records to the state drainage engineer and to the county zoning administrator.

88.19(4)(a)2. 2. The drainage board and the county zoning administrator shall retain certain records of the drainage board.

88.19(4)(b) (b) The secretary of the drainage board and the county zoning administrator shall maintain in perpetuity any records consisting of an order creating or altering the boundaries of a district, maps or descriptions of the boundaries of a district, profiles and cross sections of any drains and an order levying original or supplemental assessments for costs.

88.19(4)(c) (c) The drainage board and the county administrator may destroy obsolete drainage board records.

88.19(4)(d) (d) Before any records may be destroyed under this subsection, the secretary of the drainage board and the county zoning administrator shall give at least 60 days’ prior written notice of the proposed destruction to the state historical society, which may preserve records that it determines to be of historical interest, and shall give at least 60 days’ prior written notice to the state drainage engineer, who may preserve records determined to be of interest to the department of agriculture, trade and consumer protection.

88.19(5) (5) The state drainage engineer shall examine the records in the possession of all drainage board secretaries and drainage districts and the records received from clerks of court under 1993 Wisconsin Act 456, section 118, and may examine any other records held by any person relating to drainage in this state. The state drainage engineer shall determine the records that are required to be preserved under sub. (4) and make copies of the records. The state drainage engineer shall retain a copy of the records and deliver a copy to the county zoning administrator.

88.19(6) (6) The secretary of the drainage board, under sub. (4), shall provide a copy of drainage board records created after May 13, 1994, to the state drainage engineer and the county zoning administrator.

88.19(7) (7) The county zoning administrator shall maintain the records delivered under sub. (5) and any records provided under sub. (6) as provided under sub. (4).

88.19 History History: 1991 a. 316; 1993 a. 456.

88.19 Note NOTE: 1993 Wis. Act 456, which amended sub. (3) and created subs. (4) to (7), contains extensive explanatory notes.

88.20 88.20 Conflict of interest prohibited.

88.20(1) (1) No member of a drainage board shall be interested directly or indirectly:

88.20(1)(a) (a) In any contract with the drainage board; or

88.20(1)(b) (b) In any contract for work or materials in or for a drainage district; or

88.20(1)(c) (c) In any contract for the sale of machinery or materials for or to the drainage board; or

88.20(1)(d) (d) In the wages or supplies of persons employed on work in or for a drainage district.

88.20(2) (2) No board member shall deal in securities of a drainage district.

88.21 88.21 General powers of the drainage board. In addition to other powers expressly granted or necessarily implied, the drainage board may:

88.21(1) (1) Adopt and use a corporate seal.

88.21(2) (2) Sue and be sued and compromise suits and controversies.

88.21(3) (3) Bring all necessary actions for the collection of moneys and forfeitures belonging to a district under its jurisdiction and for the protection and preservation of all works and property thereof.

88.21(4) (4) Obtain injunctions to prevent unlawful interference with the performance of its duties or exercise of any of its powers.

88.21(5) (5) Employ legal counsel, engineers and other assistants. Any engineer employed by the board shall be selected from a list of professional engineers approved by the department of agriculture, trade and consumer protection. The department of agriculture, trade and consumer protection shall furnish each drainage board, upon request, a list of professional engineers whom it considers qualified by training and experience to give competent advice in drainage matters.

88.21(6) (6) Purchase or condemn such lands, whether within or outside a district, as are necessary for the construction, cleaning out, repair and maintenance of the drainage system and its works. Condemnation shall be as provided by ch. 32.

88.21(8) (8) Level or permit the leveling of spoil banks and excavated materials to allow cultivation or use for roadway or other lawful purposes if such use will not interfere with the proper functioning of the drains.

88.21(9) (9) Purchase or lease and maintain and operate the equipment and machinery necessary to construct, maintain or repair the drains within the districts under its jurisdiction, including the control of weeds or brush through use of herbicides.

88.21(10) (10) Purchase, construct, maintain and operate all levees, bulkheads, reservoirs, silt basins, holding basins, floodways, floodgates and pumping machinery necessary to the successful drainage or protection of any district or of any considerable area thereof, whether located within or outside the district.

88.21(11) (11) Call district meetings to report on the affairs of the district and to obtain the opinions and suggestions of landowners in the district with regard to the affairs of the district.

88.21(12) (12) Adopt rules and issue orders, which shall be published as a class 1 notice under ch. 985. In addition, any order that pertains to a specific named person or property shall be served on the person or owner of the property in the manner provided for service of a summons under s. 801.11. The court has jurisdiction to enforce an order of the drainage board by injunctive or other appropriate relief.

88.21(13) (13) Authorize legal counsel for the board to represent an individual owner of land with respect to any matter that arises under this chapter.

88.21 History History: 1989 a. 31; 1993 a. 456.

88.21 Annotation A drainage board is subject to shoreland zoning ordinances, as is any other person. Although soil conservation districts and drainage districts are created for a different purpose, some activities of both accomplish similar ends; therefore, each district retains control over those activities that it undertakes for the purposes for which it was created. 63 Atty. Gen. 355.

88.21 Annotation Ch. 30 applies to navigable ditches that were originally navigable streams. If a navigable ditch was originally nonnavigable or had no previous stream history, the Department of Natural Resources’ jurisdiction depends upon the facts of each situation. 63 Atty. Gen. 493.

88.212 88.212 Required actions for the drainage board. In addition to other powers expressly granted or necessarily implied, the drainage board shall:

88.212(1) (1) Beginning in 2009, and every 3 years thereafter, provide written notice to every person who owns land that is located within the drainage district that such land is in the district. The notice shall also include contact information for every member of the drainage board.

88.212(2) (2) Annually, provide contact information for every member of the drainage board to the state drainage engineer and to the clerk of every city, village, town, and county in which the drainage district is located.

88.212(3) (3) Not later than November 1 of each year, provide the clerk of each taxation district in which the drainage district is located a list of every assessment issued by the drainage board from November 1 of the previous year to October 31 of the current year. The information shall specify the assessment amount for every parcel in the district.

88.212(4) (4) If any portion of a drainage district that is a subject matter of a drainage board meeting is located in a city, village, or town, notify the city, village, or town of the date, time, and subject matter of the meeting. A notification under this subsection may be in an electronic format.

88.212 History History: 2007 a. 121; 2017 a. 115.

88.215 88.215 Landowner petitions. The owners of land in a district may petition the drainage board to hold a district meeting. The petition shall be signed by at least 10 percent of the owners of land within the district or by the owners of at least 10 percent of the lands within the district. The drainage board shall either schedule a district meeting to be held within 60 days after receiving the petition or deny the petition, by issuing a published order, within 60 days after receiving the petition. The drainage board may deny the petition only on the grounds that it is unreasonable.

88.215 History History: 1993 a. 456.

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

88.22 88.22 Power of board to contract with the federal government and other agencies. The drainage board may:

88.22(1) (1) Enter into agreements with the U.S. government or an officer or agency thereof to permit the drainage of lands owned or occupied by such government or agency, through the use of the drains of which the board has charge. Such agreement may result in adding lands to the drainage district, may provide for apportionment of the assessments for costs of repairs, maintenance and administration with respect to the draining of such lands, and may authorize the U.S. government or its officer or agency to repair, maintain, deepen, widen and change drains located upon lands owned or occupied by such government or agency as long as such change does not impair the drainage rights of other owners through such lands. No such agreement shall permit the draining of raw sewerage in any such drains.

88.22(2) (2) Negotiate and obtain a loan from the federal government or any officer or agency thereof, or from any other public or private loan agency, for the purpose of paying or redeeming outstanding bonds and other obligations of a district under its jurisdiction. Such loan may be negotiated upon such terms and conditions as the board deems to be in the best interest of the district, including without restriction by reason of enumeration provisions for:

88.22(2)(a) (a) Extending the time of payment of delinquent and unmatured installments of assessments for cost of construction, inclusive of interest accrued thereon, for a period of not to exceed 40 years.

88.22(2)(b) (b) Deferring payment of any portion of the principal of unpaid and unmatured assessments of cost of construction, inclusive of interest already accrued thereon, for a period of not to exceed 10 years and provide for the payment of such delinquent and unpaid assessments of cost of construction in equal annual installments over a period of years.

88.22(2)(c) (c) Arrange with the holders of bonds and notes and other creditors of the district for surrender of their claims against the district and for accepting money or bonds in payment thereof.

88.22(3) (3) Enter into contracts with the U.S. government or an officer or agency thereof to accept the benefits of any federal law pertaining to flood prevention or the conservation, development, utilization and disposal of water. Without restriction by reason of enumeration, the contracts may provide that the district on whose behalf the contract is negotiated will:

88.22(3)(a) (a) Provide without cost to the United States all lands necessary for the construction of the project and for the subsequent maintenance and operation of the project.

88.22(3)(b) (b) Contribute such part of the first cost of construction of such project as is agreed upon with the United States, either in cash or in credits, for purchase of material or performance of work forming part of the project.

88.22(3)(c) (c) Hold and save the United States harmless from claims for damages to any property resulting from construction of the works of the project.

88.22(3)(d) (d) Maintain and operate all the works after completion of the project in accordance with regulations prescribed by the U.S. government or any officer or agency thereof.

88.22 History History: 1971 c. 323 s. 27; 1981 c. 346 s. 38; 1993 a. 456; 1995 a. 225.

88.23 88.23 Power of board to levy assessments for costs.

88.23(1) (1) In addition to the assessments for cost of construction authorized by s. 88.35, the board may issue orders to levy assessments for costs of maintenance and repair or for any other lawful expenditures of a drainage district. All of the assessments shall be apportioned on the confirmed benefits then in effect in the district assessed.

88.23(2r) (2r) The board may authorize one or more owners of land in a drainage district to prepare a proposed assessment for cost of construction or maintenance and repair.

88.23(3) (3) Assessments made under this section are subject to ss. 88.40 to 88.43. In no case may the total assessments against any land exceed the benefits assessed against that land unless an interested person agrees to pay such excess and furnishes the drainage board with sufficient security for the excess benefits or unless the assessment is for the purpose of covering the cost of repair and maintenance as defined in s. 88.63.

88.23(4) (4) The board may borrow money and issue notes or bonds based upon any assessments levied under this section in the same manner as for original assessments.

88.23 History History: 1971 c. 67; 1993 a. 456.

88.24 88.24 Board to file annual report. On or before December 1 of each year the board shall file with the department of agriculture, trade and consumer protection; the town board or town zoning committee; the city council, plan commission, or plan committee; and the county zoning administrator, in which district territory is located, a separate report, for the preceding fiscal year, on each drainage district under the board’s jurisdiction. Unless the board selects a different fiscal year and notifies the department of the selection, the board’s fiscal year begins on September 1 and ends on the following August 31. All local units of government that receive the report shall consider it before making any zoning or planning decisions that may affect a drainage district that is located within its boundaries. The reports shall constitute part of the records of the districts reported on, shall be verified by the oath of one or more of the board members, and shall contain:

88.24(1) (1) A financial statement.

88.24(2) (2) A statement of all bonds paid or issued during the preceding year.