Chapter 88

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

88.45 88.45 Procedure upon discovering omitted assessments.

88.45(1) (1) Upon learning of an omission to assess benefits or to assess costs or to award damages to any lands in a district, the board shall issue an order making the assessments or awards that the board considers just.

88.45(2) (2) No omission to assess benefits or to assess for costs or to award damages to any lands in a district renders any assessment in the district voidable.

88.45(3) (3) This section is retroactive.

88.45 History History: 1993 a. 456.

88.46 88.46 Reassessment of benefits.

88.46(1) (1) At any time after the expiration of 5 years from the order of the board assessing benefits in a drainage district, owners of land in the district may petition the drainage board for a reassessment of benefits on the ground that the original assessment of benefits is inequitable and unjust. The petition shall be signed by at least one-tenth of the owners of land within the district or by the owners of at least one-tenth of the lands within the district.

88.46(2) (2) Upon receipt of a petition meeting the requirements of sub. (1), the board shall either schedule a hearing on the matter to be held within 60 days after receiving the petition or issue an order denying the petition within 60 days after receiving the petition. If it appears to the board that the original assessment of benefits throughout the drainage district was uniformly low or substantially so, by reason of the application of a substandard evaluation or other cause, the board shall issue an order adjusting all benefits in the district so as to correct the inequities and injustices.

88.46(4) (4) A reassessment under this section supersedes all prior assessments of benefits, subject in every case to s. 88.02.

88.46 History History: 1979 c. 110 s. 60 (11); 1993 a. 456.

88.47 88.47 Apportionment of assessments when assessed parcel is divided. If any tract of land which has been assessed benefits as a unit subsequently is divided into smaller parcels, the board shall issue an order to apportion the assessment, and any unpaid assessment for costs based thereon, among the several divisions in a manner that is equitable.

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

88.48 88.48 Assessment of county and municipal lands.

88.48(1) (1) Lands owned by a county, town, village or city may be assessed benefits, awarded damages and assessed for costs the same as other lands within the district. Notice of hearing on the report assessing benefits against such lands shall be served on the clerk of the county, town, village or city in the same manner as upon resident landowners.

88.48(2) (2) As assessments for costs levied against any city, village, or town become due, the board shall certify the assessments to the clerk of the city, village, or town, and the clerk shall place them upon the next tax roll. If the assessments exceed one-fourth of one percent of the assessed value of the property in the city, village, or town for the last previous assessed valuation, the assessments shall be paid in installments of one-fourth of one percent of the valuation for each year until paid unless the drainage board orders them paid in smaller amounts.

88.48 History History: 1993 a. 456; 2009 a. 177.

88.48 Annotation A town sanitary district is subject to assessment by a drainage board. State ex rel. Town of Norway Sanitary District #1 v. Racine County Drainage Board of Commissioners, 220 Wis. 2d 595, 583 N.W.2d 437 (Ct. App. 1998), 97-2861.

88.49 88.49 Assessment of one district by another; judgment against district. If one district, by order of the drainage board, has assessed another district for special benefits, or if a money judgment has been rendered against any district, the board shall assess upon the lands of the district that is liable a sum that is sufficient to pay the assessment or judgment. The drainage board may order that the assessment be payable in installments.

88.49 History History: 1993 a. 456.

88.50 88.50 When state lands subject to assessment; right-of-way across state lands.

88.50(1) (1) Agricultural lands owned by the state are subject to assessment in drainage proceedings. Other lands owned by the state are not subject to such assessment. Whenever the state acquires lands against which drainage assessments have been made and which no longer will be subject to assessment, the state shall pay the district all unpaid assessments against such lands, whether due or not. The secretary of the board then shall remove the lands from the district’s assessment roll. Acquisition of such lands by the state shall not be construed as prohibiting maintenance of existing drains.

88.50(2) (2) No drain may be constructed on lands owned by the state or on lands on which the state exercises management control by easement, lease or otherwise, without the written permission of the agency responsible for the lands. The agency shall grant such permission upon application made to it, unless it finds after notice and public hearing thereon that the proposed drain will be injurious to the use of the property for the purposes for which it was acquired by the agency. Any administrative decision on the application, or any findings or order of the agency after public hearing, made hereunder shall be subject to review under ch. 227.

88.50 History History: 1993 a. 490.

subch. V of ch. 88 SUBCHAPTER V

BORROWING MONEY; REFINANCING;
COMPROMISE OF DEBTS

88.54 88.54 Borrowing money.

88.54(1) (1) At any time after the filing of a petition for organization of a drainage district but before the court issues an order organizing the drainage district, the drainage board may, with the consent of the court, borrow money in the name of the proposed drainage district to defray the expenses of organization.

88.54(2) (2) The board may borrow money in an amount not exceeding the then unpaid assessments for costs, for the purpose of paying any or all obligations of a drainage district or for refunding existing notes or bonds. The board may secure the indebtedness by notes or bonds of the district, bearing interest at a rate approved by the board and running not beyond one year after the due date of the last installment of the assessments on account of which the money was borrowed. The notes and bonds constitute a lien upon all confirmed assessments for costs that are unpaid at the time the notes are given or bonds issued. Board members are not personally liable on the notes or bonds.

88.54(3) (3) If the board desires to borrow money upon the notes or bonds of a drainage district to be paid during a series of years and after the lapse of a period of not more than 3 years, the board shall first publish a class 2 notice, under ch. 985, to invite proposals to furnish the money desired at the most favorable rate of interest or, if notes or bonds are issued at a specific rate of interest approved by the board, proposals to purchase the notes or bonds at the best premium. If the advertisement is made without success and if the board is unable to sell the notes or bonds at par or above, the board may sell the notes or bonds at private sale at the best price it can obtain for them.

88.54(4) (4) If at any time the board finds that a district does not have or will not have sufficient funds on hand to pay any lawful indebtedness of the district when the indebtedness becomes due, or if any extraordinary emergency requires borrowing, the board may borrow money to pay the indebtedness or meet the emergency. If the amount to be borrowed does not exceed $8,000 and the loan does not run beyond one year, the board may borrow the money without holding a hearing. In other cases, s. 88.065 applies. When necessary, additional assessments to pay the loans shall be made under s. 88.23.

88.54(6) (6) Except in the case of refunding bonds, no evidence of indebtedness of a district running for more than one year is valid unless approved by the attorney general and unless it bears a statement showing the approval.

88.54(7) (7) The board shall keep a record of all bonds and notes issued on behalf of a district. Such record shall show with respect to each bond and note the number, series, date, principal, rate of interest and date of maturity thereof, the date when interest is due thereon and any payments made. If a bond or note is refunded it shall be marked “Refunded by No. ....”. The board shall execute all bonds or notes it offers to the public that mature after more than one year as provided in s. 67.08 (1) and may register these bonds or notes under s. 67.09.

88.54 History History: 1983 a. 24; 1987 a. 275; 1991 a. 316; 1993 a. 456.

88.55 88.55 Refunding district obligations.

88.55(1) (1) The drainage board may refund bonds of the district and issue new bonds of the district payable over a term determined by the board. The aggregate principal amount of the new bonds shall not exceed the aggregate principal amount of the refunded bonds and the unpaid accrued interest on them. The new bonds shall bear interest at a rate approved by the board.

88.55(2) (2) When bonds of the district have been refunded or are about to be refunded under sub. (1), the board may, on petition of one or more landowners or of the board, extend the time in which to pay assessments for construction to September 1 next preceding the due date of a like portion of the refunding bonds which are liens thereon. In such event, the face of all unpaid past due assessments so extended, together with all interest, penalties and charges, shall be a lien on the lands against which the assessments were originally made. The board may make all orders and do all other things necessary to carry into effect the extension of time.

88.55 History History: 1993 a. 456.

88.56 88.56 Compromise and discharge of obligations.

88.56(1) (1) Whenever a drainage district is unable to pay its bonds and notes in full, the board may enter into a written compromise agreement with the owners of not less than 70 percent of its obligations. When such agreement has been signed by members of the board and the owners of 70 percent of such obligations, all creditors of the district are subject to such agreement to the same extent as those signing the agreement, and their claims shall be treated in all respects as if they had executed such agreement.

88.56(2) (2) Whenever a drainage district is unable to pay its obligations in full, the board may file with the court a petition for an order approving a settlement of claims and directing an equitable distribution of net assets among the creditors of the district. Such petition shall list the available assets of the district, the obligations of the district, the owners of such obligations and their names and addresses or, if unknown, a statement of that fact, and shall state whether a compromise agreement has been executed under sub. (1). If such agreement has been executed, a copy thereof shall be attached to the petition.

88.56(3) (3) Upon receiving a petition under sub. (2), the court shall enter an order fixing a time not less than 4 months nor more than 6 months after receipt of the petition within which creditors shall present their claims for examination and allowance. The order shall also fix a time and place for hearing on claims and publication and notice shall be given under s. 88.05 (1) (b) to all creditors of the district whose names and addresses are known.

88.56(4) (4) The court shall receive, examine and adjust all claims and demands against the district. At the time set for hearing on claims, any claim may be allowed which is accompanied by a statement of account verified by affidavit and to which no objection is received, except that no claim shall be allowed until the court is satisfied that it is just.

88.56(5) (5) The court shall make a statement embracing a list of the claims presented against the district and those presented as a set-off. Such statement shall show how much was allowed and how much disallowed in each case, together with the final balance, whether in favor of the creditor or the district. Such statement shall be filed by the judge and shall stand as the judgment of the court. The court may make an order directing that the available balance of the funds of the district, after costs are paid, be distributed among the district’s creditors as equity requires and discharging the district from further liability on its obligations.

88.56(6) (6) All claims against a district which are not filed within the time limited by this section are barred.

88.56 History History: 1993 a. 456.

88.61 88.61 Laying out drains, assessment of benefits and award of damages in existing drainage district. After the organization of a drainage district and the construction of drains under the procedures in ss. 88.35 and 88.36, if the drainage board proposes to construct additional drains in the existing drainage district, it shall prepare reports, assess benefits and damages, conduct a hearing and determine costs and benefits substantially as provided under ss. 88.35 and 88.36.

88.61 History History: 1993 a. 456.

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

subch. VI of ch. 88 SUBCHAPTER VI

CONSTRUCTION, MAINTENANCE AND
IMPROVEMENT OF DRAINS

88.62 88.62 Conditions relative to doing of work.

88.62(1) (1) The drainage board may authorize the drainage district to do its own work or the board may enter into contracts to have the work done. The board may advertise for bids and shall do so in all cases where the work to be done will cost in excess of $25,000. When the board is required to advertise for bids, the board shall publish a class 2 notice, under ch. 985, and other notices that the board considers appropriate, and the work shall be let to the lowest responsible bidder unless in the board’s opinion the bid is unreasonably high and a lower bid can be obtained. The board may continue the letting of the work from time to time, and may reject any or all bids.

88.62(2) (2) Before the board or its contractor may enter on lands for the construction of any drain on the lands, any damages awarded to the owners of the lands in excess of assessments against the lands for the cost of construction must have been paid or tendered. If the owner is unknown or the board for any other reason cannot safely pay the owner, it may deposit the net damages in an escrow account for the benefit of the owner or other party who is entitled to the damages, to be paid or distributed when payment can be made to the owner or other party or released after 5 years, whichever occurs first. Notwithstanding ch. 177, any funds not claimed in 5 years may be retained by the drainage board for the benefit of the drainage district for which the funds are held, after the board publishes a class 2 notice under ch. 985 and mails notice to the last-known address of each owner or other party regarding the existence of the unclaimed funds. The payment has the same effect as a tender to and acceptance of damages by the person entitled to the damages.

88.62(3) (3) 

88.62(3)(a) (a) Except for a removal of material that is exempt from the individual and general permit requirements under s. 30.20 as specified under s. 30.20 (1g) (d) and except as provided under par. (b), if drainage work is undertaken in navigable waters, the drainage board shall obtain a permit under s. 30.20 or 88.31 or ch. 31, as directed by the department of natural resources.

88.62(3)(b) (b) If drainage work is undertaken in navigable waters located in the Duck Creek Drainage District, the board for that district shall obtain a permit under s. 30.20 or ch. 31, as directed by the department of natural resources.

88.62 History History: 1987 a. 275; 1991 a. 316; 1993 a. 456; 1999 a. 9; 2007 a. 122; 2017 a. 115.

88.63 88.63 Maintenance and repair of drains.

88.63(1g) (1g) In this section “maintenance and repair” refers to the restoration of a drain or any part thereof as nearly as practicable to the same condition as when originally constructed or subsequently improved, including resloping of open ditches and leveling of spoil banks or excavated materials, and such routine operations as from time to time may be required to remove obstructions and preserve the efficiency of the drains. The terms do not include any substantial or material alteration, enlargement or extension of the drainage system of the district.

88.63(1m) (1m) It is the duty of the drainage board to maintain in good condition the drains in all districts under the board’s jurisdiction and to repair such drains when necessary. The board shall have all drains under its jurisdiction inspected annually to determine the need for maintenance and repair work. The board shall apportion the cost of such inspection to the various districts involved and the cost shall be paid out of any funds of the district available for maintenance and repair. The board may hire an inspector or authorize one or more owners of land in the drainage district to make the inspection or members of the board may themselves make the inspection.

88.63(2) (2) The board may establish and maintain a fund for the payment of the costs of normal operations and maintenance and repair and for emergency expenses. Moneys in a fund under this subsection may not exceed amounts reasonably necessary for the purposes under this subsection.

88.63(4) (4) The drainage board may use the funds assessed for maintenance and repair to pay for the costs of undertaking or defending a lawsuit involving the board, a board member or a drainage district or for representing an owner of land in a drainage district as provided in s. 88.21 (13). The board shall allocate the costs to individual drainage districts in an equitable manner.

88.63 History History: 1993 a. 456; 2001 a. 103; 2017 a. 115.

88.63 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. Section 31.33 applies to nonnavigable artificial waterways insofar as is necessary to protect navigable waters and owners of flooded waters. 63 Atty. Gen. 493.

88.64 88.64 Assessment against municipalities for enlargement or maintenance of drains.

88.64(1) (1) In this section:

88.64(1)(a) (a) “Enlarge” means to increase the capacity of a drain to convey water, including adding facilities such as pumps or lift stations, by performing any necessary construction.

88.64(1)(b) (b) “Municipality” means a city, village or town.

88.64(2) (2) A drainage board may assess a municipality with territory upstream from any drain for any costs of enlarging or maintaining the drain that are attributable to increased water flow from land within the municipality. If the drainage board assesses a portion of the costs of enlarging or maintaining a drain against a municipality, the drainage board shall use the procedure under this section.

88.64(3) (3) The drainage board shall obtain a report prepared by a professional engineer who is selected from the list specified in s. 88.21 (5). The report shall include all of the following:

88.64(3)(a) (a) The construction and costs that are necessary to restore the drain so that it conveys the same amount of water as when most recently constructed or enlarged.

88.64(3)(b) (b) The construction and costs that are necessary to enlarge the drain to convey the flow of water from any land in the drainage district or upstream from the drainage district that has been newly drained since the drain was most recently constructed or enlarged.

88.64(3)(c) (c) The construction and costs that are necessary to enlarge the drain to convey the flow of surface water from upstream sources that represents an increase in flow since the drain was most recently constructed or enlarged.

88.64(3)(d) (d) Of the increased flow identified in par. (c), the amount of that flow that is attributable to each municipality with territory in the watershed above the drain, based proportionally on all of the following:

88.64(3)(d)1. 1. The increased flow into the drain from impermeable surfaces such as roads, parking lots or roofs since the drain was most recently constructed or enlarged, whether or not the impermeable surfaces are within the watershed.

88.64(3)(d)2. 2. The increased flow into the drain from the discharge of wastewater from a sewage treatment plant since the drain was most recently constructed or enlarged, whether or not the source of the wastewater is within the watershed.

88.64(3)(e) (e) The maintenance costs that are attributable to the flow of surface water from upstream sources that represents an increase in flow since the drain was most recently constructed or enlarged.

88.64(4) (4) Upon completion of the report under sub. (3), the drainage board shall set a time and place for a hearing on the report and shall give the notice under s. 88.05 (2) (b) to the persons specified in s. 88.05 (4) (c) and to the clerk of each municipality identified in the report as responsible for a portion of the costs of enlarging or maintaining the drain. At the hearing on the report, the drainage board shall hear all objections to the report by any aggrieved person. Representatives of a municipality may introduce evidence that tends to establish a different allocation of costs. If the drainage board finds that the report requires modification or amendment, it shall modify or amend the report as the facts warrant.

88.64(5) (5) At the conclusion of the hearing and after completion of the final report, the drainage board shall issue an order directing each municipality to pay the portion of the cost of enlarging or maintaining the drain as determined in the report. If the drainage board orders or allows landowners in the drainage district to pay for the costs of enlarging or maintaining the drain in installments, the drainage board shall permit a municipality to pay the assessment in installments. The drainage board shall mail the order to the clerk of each municipality by certified mail.

88.64(6) (6) Any municipality affected by the order may, within 120 days after receipt of the order under sub. (5), request the state drainage engineer to review the final report and order of the drainage board. The state drainage engineer shall complete the review of the final report and order within 120 days after receiving the request from the municipality. The state drainage engineer shall issue a report on whether the drainage board order complies with the report prepared under sub. (3), including a recommendation that the drainage board affirm, modify and affirm or reverse the order. The state drainage engineer shall mail a copy of the report and recommendation to the drainage board and to each municipality that is subject to an order under sub. (5). Upon receiving the state drainage engineer’s report and recommendation, the drainage board shall promptly issue an order to affirm, modify and affirm or reverse its previous order and mail the order by certified mail to the clerk of each municipality affected by the order and the state drainage engineer. The municipalities that request the state drainage engineer to review the report and order shall jointly pay the actual and necessary costs of the review and the payment shall be credited to the appropriation under s. 20.115 (7) (ga).

88.64(7) (7) A municipality affected by a drainage board order issued under sub. (5) or (6) may seek review of the order under s. 88.09, except that a municipality may commence the action within 120 days after receiving the order.

88.64(8) (8) If a municipality pays the costs assessed by an order issued under sub. (5) or (6), it shall pay the costs or make the first payment of the costs on the February 15 following adoption by the municipality of its next annual budget after the order is issued.

88.64 History History: 1993 a. 456.

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

88.66 88.66 Construction and repair of drains crossing railroad right-of-way.

88.66(1) (1) If necessary for proper drainage, the board may lay out and construct drains across any railway right-of-way within a district. As soon as the drain has been constructed up to such right-of-way, the railway company shall open its right-of-way and permit such drain to cross the same.

88.66(2) (2) Every district whose drains cross the right-of-way of a railway company is liable to such company for the reasonable cost of opening its right-of-way and also for the cost of the culverts and bridges made necessary by such drain. The drainage board shall include such costs in its cost of construction, as set forth in its report of benefits and damages, and shall award them as damages to the railway company. The bridge or culvert shall be designed by the district’s engineer and the design submitted to the railway company for approval. If a dispute arises as to the adequacy of the design, either party may submit the dispute to the office of the commissioner of railroads by filing with the office a statement as to the facts involved and the nature of the dispute. The office shall investigate and determine the matter in controversy in accordance with ch. 195, and any order it makes in such proceeding has the same effect as an order in any other proceeding properly brought under ch. 195.

88.66(3) (3)