Chapter 88

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.

88.34(9) (9) The order organizing a drainage district shall be recorded with the register of deeds of each county in which lands of the district are located.

88.34 History History: 1977 c. 135 s. 19; 1977 c. 449; 1989 a. 31; 1993 a. 301, 456; 1997 a. 250.

88.35 88.35 Laying out drains, assessment of benefits and award of damages in newly organized district.

88.35(1) (1) Upon the organization of a drainage district, the board shall with the aid of an engineer having the qualifications specified in s. 88.21 (5):

88.35(1)(a) (a) Lay out drains of sufficient depth to adequately drain the lands proposed to be drained, including the preparation of profiles showing the grades of all drains and a map showing the boundaries of the drainage district and the proposed location of all drains;

88.35(1)(b) (b) Assess the benefits that will accrue to each parcel of land benefited;

88.35(1)(c) (c) Award damages to such lands as will be damaged;

88.35(1)(d) (d) Estimate the cost of construction;

88.35(1)(e) (e) Assess the cost of construction against the benefited lands in proportion to the benefits received by each;

88.35(1)(f) (f) Estimate the annual cost of maintenance and operation of the drainage district.

88.35(2) (2) In laying out the drains the board shall not be confined to the points of commencement, routes or end points of the drains or the number, extent or size of the drains, or the location, plan or extent of any drain as proposed by the petition under s. 88.28, but shall locate, design, lay out and plan the drains in the manner that seems best to the board to promote the public health or welfare and to drain or to protect the lands of the parties interested with the least damage and greatest benefit to all of the affected lands. In determining the sufficiency of the depth and capacity of the drains, the board shall consider whether other lands lie above and drain in the direction of, through and along the general course of the proposed drains.

88.35(3) (3) If the board finds that the drainage district, as described in the petition under s. 88.28, will not embrace all the lands that will be benefited by the proposed work or that it will include lands that will not be benefited or do not need to be included in the drainage district for any purpose, it may extend or contract the boundaries of the district so as to include or exclude all such lands using the procedures in s. 88.78 or 88.80.

88.35(4) (4) In assessing benefits to farm lands, the board shall ascertain and consider the depth, quality and character of the surface and subsoils, the thoroughness of drainage, the difficulty of drainage, the uses to which the land when drained will be adapted, and all other material elements entering into the increase in the value of such land resulting from the proposed work.

88.35(5) (5) If the damages to any land exceeds the assessment for cost of construction levied against such land the excess shall be paid out of the assessment for cost of construction levied against all lands.

88.35(5m) (5m) If navigable waters are affected by the proposed drainage, the drainage board shall obtain a permit under s. 88.31. This subsection does not apply to the Duck Creek Drainage District.

88.35(6) (6) Upon the completion of its duties under subs. (1) to (5m), the board shall prepare a written report, including a copy of any maps, plans or profiles that it has prepared. The assessment of benefits and awards of damages shall be set forth in substantially the following form: [See Figure 88.35 (6) below]

88.35(7) (7) If the area of the district exceeds 200 acres, the report shall be submitted to the department of agriculture, trade and consumer protection. Within 45 days after its receipt, the department shall return it with a copy of the report prepared under s. 88.11 (3) and the department’s approval or disapproval of the report prepared under sub. (6).

88.35 History History: 1979 c. 110; 1989 a. 31; 1993 a. 456; 1999 a. 9; 2007 a. 121.

88.36 88.36 Hearing on report.

88.36(1) (1) Upon the completion of the report provided for in s. 88.35, the drainage board shall fix the time and place of the hearing on the report and shall cause notice of the hearing to be given under s. 88.05 (2) (b) to the persons specified in s. 88.05 (4) (c).

88.36(2) (2) At the hearing on the report the drainage board shall hear all objections to the report by any person who feels aggrieved.

88.36(3) (3) With regard to objections relating to assessment of benefits against or award of damages to specified lands, any evidence may be introduced which tends to establish what assessments or awards would be equitable as compared with other lands in the district.

88.36(4) (4) If the drainage board finds that the report requires modification or amendment, it shall modify or amend the report as the facts warrant.