Chapter 88

88.28(1)(d) (d) That the cost of construction will not exceed 75 percent of the appraised benefits arising from such drainage.

88.28(1)(e) (e) A proposed name or number for the district.

88.28(1)(f) (f) The names and addresses of the owners and mortgagees of all lands in the district, so far as known to the petitioners.

88.28(1)(g) (g) A request for the organization of the drainage district.

88.28(1)(h) (h) If the purpose of such petition is the enlargement, repair or maintenance of a drain, heretofore constructed under any law of this state, the petition shall give a general description of the drain with such particulars as the petitioners deem important.

88.28(1)(i) (i) The quality and character of soils and subsoils in the proposed district.

88.28(1)(j) (j) A soil map of the proposed district.

88.28(1)(k) (k) The present agricultural value of the lands.

88.28(1)(L) (L) The kind of crops which will be grown on the land after drainage.

88.28(2) (2) In lieu of meeting with the requirements of sub. (1) (d), the petitioners may file with the petition a written agreement that they will pay such portion of the cost of construction as exceeds 75 percent of the appraised benefits to all lands resulting from the construction of the proposed drainage works.

88.28(3) (3) The petition need not be verified.

88.28 History History: 1977 c. 449; 1993 a. 456; 2007 a. 121 s. 6.

88.29 88.29 Referral of petition to board; examination of lands; hearing by board.

88.29(1) (1) Upon receipt of a petition for organization of a drainage district the court or judge by order shall refer the petition to the drainage board and order the board to report thereon.

88.29(2) (2) When a petition has been so referred to the board, the board, with the aid of an engineer having the qualifications specified in s. 88.21 (5), shall examine the lands described in the petition and all other lands that the board believes will be benefited or damaged by the proposed work and shall consider whether the drains as proposed in the petition are satisfactory.

88.29(3) (3) The board also shall hold a hearing on the petition to ascertain the sufficiency of the signers and to hear all interested persons who desire to be heard for or against the petition.

88.29(4) (4) The board shall fix a time and place of the hearing on the petition, on or conveniently near the lands described in the petition, and shall give notice of the hearing as provided in s. 88.05 (2) (b) to the persons specified in s. 88.05 (4) (c).

88.29(5) (5) The notice shall describe the lands involved and may be in substantially the following form:

“Notice is hereby given that the drainage board of .... County will meet on the .... day of ...., .... (year), at .... o’clock, .... M. at the (here describe the place of meeting) to consider the petition filed in the circuit court of .... County to drain lands among which are the following: (here describe the lands described in the petition). All persons interested may appear and be heard on the petition.

Dated ....

................

................

................

Drainage Board”.

88.29(6) (6) The board may adjourn the hearing to a time and place that it considers convenient or necessary. The board shall either make a public announcement of the time and place of the adjournment or give notice as provided in s. 88.05 (2) (b) to the persons specified in s. 88.05 (4) (a) and also by publication of the notice once in the vicinity in a newspaper qualified under ch. 985, such publication to be not more than 20 days nor less than 10 days before the date set for the adjourned hearing.

88.29 History History: 1979 c. 175 s. 50; 1993 a. 456; 1997 a. 250.

88.31 88.31 Special procedure in cases affecting navigable waters.

88.31(1) (1) If it is necessary to enter upon any waters that may be navigable, or to acquire and remove any dam or obstruction from the waters, or to clean out, widen, deepen or straighten any stream that may be navigable, the board shall file with the department of natural resources an application for a permit to do the work. The board shall file with the application any information that the board or the department of natural resources considers necessary. The department shall specify by rule the information to be included in an application. The application shall state that the public health or welfare will be promoted by the removal of the dam or other obstruction or by the straightening, cleaning out, deepening or widening of the waters and that other public rights in and public uses of the waters will not be materially impaired. The application shall be duly verified.

88.31(2) (2) Upon receipt of the application the department of natural resources shall fix a time and place for a hearing on the application, not less than 3 nor more than 8 weeks from the date of filing, at a place convenient to the interested parties. If the application is for a permit to remove a dam, notice of the hearing shall be given to all interested persons as provided by s. 31.06. In all other cases, the department shall direct the applicant to give notice under s. 88.05 (2) (b) to the persons specified in s. 88.05 (4) (b).

88.31(3) (3) At the hearing on the application, all interested persons may appear and be heard. The department also may make an independent investigation of the situation.

88.31(4) (4) Upon the conclusion of the hearing and investigation, the department of natural resources shall grant the permit if it finds:

88.31(4)(a) (a) That the public health and welfare will be promoted by the proposed removal of the dam or other obstructions or by the proposed straightening, cleaning out, deepening or widening of such waters; and

88.31(4)(b) (b) That the proposed work is necessary to the proper operation of the proposed drainage system; and

88.31(4)(c) (c) That the proposed work will not materially impair the navigability of any such waters and will not materially impair any other public right in or public uses of such waters. The enjoyment of natural scenic beauty is declared to be a public right to be considered along with other public rights.

88.31(4m) (4m) The department of natural resources shall grant or deny the permit within 6 weeks after the conclusion of the hearing on the application.

88.31(5) (5) When granting a permit under this section the department of natural resources also shall establish the minimum level at which the affected waters may be maintained.

88.31(6) (6) The department of natural resources may require the applicant for the permit to submit a plan for the work to be done in the waters in question and may amend or modify such plan before approving it. The department may at any time, on the application of any interested person, further amend such plan when the same can be done without materially impairing the navigability of any such waters and without materially impairing any other public right.

88.31(7) (7) Upon granting a permit under this section, the department forthwith shall transmit to the secretary of the drainage board a copy of the permit and the relevant findings, orders and approved plans.

88.31(7m) (7m) The Duck Creek Drainage District is exempt from the permit requirements and procedures under subs. (1) to (7).

88.31(7r) (7r) A drainage district that is exempt from the individual and general permit requirements under s. 30.20 as specified under s. 30.20 (1g) (d) is exempt from the permit requirements and procedures under subs. (1) to (7) with respect to that removal.

88.31(8) (8) Subject to other restrictions imposed by this chapter, a drainage board which has obtained all of the permits as required under this chapter and ch. 30 may:

88.31(8)(a) (a) Do all acts necessary in and about the surveying, laying out, constructing, repairing, altering the course of, enlarging, clearing, deepening, widening, protecting and maintaining any drain in, through, or upon such waters, both within and beyond the limits of the drainage district; and

88.31(8)(b) (b) Procure, purchase or condemn by proceedings had under ch. 32, riparian rights, rights of flowage, dams and waterpowers in such waters, both within and beyond the limits of the drainage district.

88.31(9) (9) In all cases a drainage district is liable to the owner of riparian rights, rights of flowage, dams and waterpowers for all property taken and for all damages which may be occasioned to such property by reason of any work done on it. Such damages shall be determined either by agreement, award of damages or condemnation proceedings and shall be paid by the drainage district before the work is done in the same manner in which payments are made where lands are acquired by railroad companies under condemnation proceedings.

88.31 History History: 1993 a. 456; 1999 a. 9; 2017 a. 115.

88.32 88.32 Report to the court.

88.32(1) (1) Within 30 days after the final adjournment of the hearing provided for in s. 88.29, the board shall report in writing to the court:

88.32(1)(a) (a) Whether the petition has the required number of signers;

88.32(1)(b) (b) Whether the lands described in the petition will be improved by drainage;

88.32(1)(c) (c) Whether other lands in the vicinity, draining to, from, or through the proposed drains, require drainage and if so a description of the same;

88.32(1)(d) (d) Whether such drainage is feasible;

88.32(1)(e) (e) Whether the public health or public welfare will be promoted by the proposed work;

88.32(1)(f) (f) Whether the drains proposed in the petition will best accomplish the drainage prayed for and the area that should be drained;

88.32(1)(g) (g) Whether the benefits from such work will exceed the cost of construction by the required amount;

88.32(1)(h) (h) Such other facts as in the opinion of the board will aid the court in its decision upon the report.

88.32(2) (2) The board may recommend to the court an increase or decrease in the area proposed in the petition to be drained. If the proposed drains are not satisfactory the board shall recommend other drains.

88.32(3) (3) In determining whether public health and welfare will be promoted, the board shall include in its consideration whether the cumulative effect of such drainage over a period of time will affect the temperature of the water of lakes or streams, or will lower the water levels of lakes or streams or of the subterranean sources that supply private and public water systems, and whether the general need for the type of land that will be made available for cultivation or other purposes by such drainage is sufficiently great to warrant the possible harmful effects described above.

88.32(3m) (3m) If the area of the proposed district exceeds 200 acres, the report shall be submitted to the department of agriculture, trade and consumer protection before it is filed with the court. Within 45 days after receipt of the report, the department shall return it with a copy of the report prepared under s. 88.11 (3) with its recommendation for approval or disapproval for the creation of the district.

88.32(4) (4) The board shall attach to its report proof of the service of notice of hearing on the petition together with a copy of its minutes of such hearing.

88.32 History History: 1993 a. 246, 456; 2007 a. 121.

88.33 88.33 Drainage project may be stopped prior to organization of district.

88.33(1) (1) At any time prior to the entry of the order organizing a drainage district, the owners who represent a majority of the lands described in the petition for drainage or who represent a majority of the lands contained in the report of the drainage board may file with the court a petition requesting that no further proceeding be had and that no further expense chargeable to the proposed drainage district be incurred.

88.33(2) (2) Upon receipt of the petition the court shall fix a time and place of the hearing on the petition and shall cause notice of the hearing to be given as provided in s. 88.05 (1) (b) to the persons specified in s. 88.05 (4) (b). If on the hearing the court finds that the petition is signed by the required number of owners, that notice of the hearing was properly given, and that the conditions of sub. (3) have been met, it shall enter an order directing that the proceedings to organize the district cease.

88.33(3) (3) As a condition of issuing the order under sub. (2), the court shall require those petitioners under this section who also were petitioners under s. 88.27 to pay the expenses of the hearing under this section and all expenses incurred to date in connection with the proceedings to organize the district.

88.33 History History: 1993 a. 456.

88.34 88.34 Hearing by the court; organization of drainage district.

88.34(1) (1) When the board has filed its report with the court, including any reports required by s. 88.11, the court shall fix a time and place of hearing on the report and shall cause notice to be given under s. 88.05 (1) (b) to the persons specified in s. 88.05 (4) (c).

88.34(2) (2) The order fixing the hearing may be in substantially the following form and a copy of the order may be served as notice of the hearing:

“Circuit court for .... County,

In the matter of the .... drainage.

Whereas a report has been filed in this court by the county drainage board recommending the drainage of the following described lands: (here describe the lands reported for drainage).

It is ordered that the report be heard and examined before this court on the .... day of ...., .... (year), at .... o’clock .... M. at the (here state the place of hearing) at which time and place all interested persons may appear and be heard. All objections must be in writing and comply with s. 88.07 (1).

Dated ....

.... ....

Circuit Judge”

88.34(3) (3) The court shall make an order organizing the drainage district and direct the board to proceed with all convenient speed if on such hearing the court finds each of the following facts:

88.34(3)(a) (a) That the petition or petitions have sufficient signers.

88.34(3)(b) (b) That the lands described in the petitions together with any additional lands recommended by the board for drainage will be improved by the proposed work.

88.34(3)(c) (c) That the public health or public welfare will be promoted thereby.

88.34(3)(d) (d) That the cost of construction will not exceed 75 percent of the benefits to be derived from the proposed work.

88.34(3)(f) (f) That the proposed work will not materially injure or impair fish habitat or wildlife habitat or scenic beauty or the conservation of natural resources or other public rights or interests.

88.34(4) (4) If the court finds the facts stated in sub. (3) (a), (b), (c) and (f) but finds that the cost of construction will exceed 75 percent of the benefits to be derived from the proposed work, the court nevertheless shall organize the drainage district if, within 10 days, petitioners file with the court a bond with sufficient sureties to be approved by the court and conditioned for the payment of the excess or deposits and leaves with the court a sum of money that the court determines will cover the excess.

88.34(5) (5) Unless the conditions specified in sub. (3) or (4) are met, the court shall deny the petition and shall tax the taxable costs of the proceedings as provided in s. 88.08.

88.34(6) (6) The court may include in a proposed drainage district any lands requiring drainage and lying adjacent to the lands described in the petition and shall not lose jurisdiction by reason of bringing in lands not described in the petition.

88.34(7) (7) If there are petitions before the court to organize 2 or more drainage districts and the court is of the opinion that the territory in the proposed districts should be included in one district or in a lesser number of districts than the petitions call for, the court may by order organize such territory into such number of districts as it deems will best conform to the purposes of this chapter, or the court may annex any territory asking to be organized as a drainage district to a district already organized.

88.34(8) (8) The territory in a district need not be all in one body if:

88.34(8)(a) (a) It is so situated that the public health or public welfare will be promoted by drainage of each separate body thereof; and

88.34(8)(b) (b) The cost of construction in each separate body thereof will not exceed 75 percent of the benefits to be derived from the proposed work therein; and

88.34(8)(c) (c) The court is satisfied that the proposed work can be more cheaply done or maintained in a single district than otherwise.