Chapter 88

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) 

88.66(3)(a) (a) Whenever the cleaning out, deepening or reconstruction of a drain crossing a railway right-of-way requires the lowering of a culvert through such right-of-way in order to provide effective drainage, the drainage board shall proceed as provided in subs. (4) to (7). Except as provided in par. (b), the expenses involved in such lowering shall be borne by the drainage district or as provided by mutual agreement between the railway company and the drainage board.

88.66(3)(b) (b) Whenever a railroad is being constructed or reconstructed across a drainage district’s drain, or a culvert in such drain is being replaced, the railway company shall consult with the drainage board having jurisdiction of such district for the purpose of determining the depth at which such drain was laid out. If any culvert or similar opening in a railway right-of-way is installed at a grade higher than the depth at which such drain was laid out, the expenses involved in any future lowering of the culvert pursuant to par. (a) shall be borne by the railway company unless the company was misled by the drainage board as to the proper grade at which to install the culvert. This paragraph applies only to work done after June 13, 1964.

88.66(4) (4) Whenever it becomes necessary to open a railway right-of-way in order to permit cleaning out or repairing any district drain, the board shall ascertain the reasonable cost thereof and, except as otherwise provided in sub. (3), shall award such cost as damages to the railway company in the board’s report when assessing the cost of repairs.

88.66(5) (5) Upon receiving 30 days’ notice in writing, any railway company across whose right-of-way any drainage district drain is laid out shall open its right-of-way to permit the board and its contractors, agents or employees to construct, clean out or repair such drain.

88.66(6) (6) If the railway company fails to open its right-of-way as required by this section, the board may at any time after the expiration of 30 days from the giving of the notice specified in sub. (5) open such right-of-way along the lines of such drains and construct, clean out or repair the same and may recover from the railway company the reasonable expense of opening the right-of-way.

88.66(7) (7) The district constructing, cleaning out or repairing a drain across the right-of-way of a railway company shall so prosecute the work as not to delay traffic upon such railway for longer than is absolutely necessary.

88.66 History History: 1977 c. 29 s. 1654 (9) (f); 1981 c. 347; 1993 a. 16, 123, 490.

88.67 88.67 Construction and repair of drains crossing utility installations; laying utility installations across drains.

88.67(1) (1) Whenever the construction, reconstruction, clean out or repair of a drain makes necessary the removal or raising of a utility installation in order to permit the passage of a dredge or other machinery or whenever the lowering of an underground utility installation is necessary in order to provide effective drainage, the owner of the utility installation, upon being given 30 days’ written notice stating the place where such dredge or machinery will pass or that lowering is necessary to provide effective drainage, shall remove, raise or lower the utility installation as requested by the board. Except as provided in sub. (3), the expenses involved in such removal, raising or lowering shall be borne by the drainage district or as provided by mutual agreement between the drainage board and the owner of the utility installation.

88.67(2) (2) If after the 30 days’ notice specified in sub. (1) the owner of the utility installation fails to remove, raise or lower the same, the board may do so and may recover from the owner of the installation the cost of the removal, raising or lowering.

88.67(3) (3) Whenever an underground utility installation is being laid or relaid across a drainage district’s drain, the owner of the utility installation shall consult with the drainage board having jurisdiction of such district for the purpose of determining the grade at which such drain was laid out. If an underground utility installation is laid at a grade higher than the grade at which the drain was laid out, the expenses involved in any future lowering of the utility installation shall be borne by the owner of the utility installation unless the owner was misled by the drainage board as to the proper grade at which to lay the utility installation. This subsection applies only to work done after June 13, 1964.

88.67(4) (4) In this section “utility installation” includes any sluice or pipe carrying any gas or liquid, or any wire, conduit or cable used for conducting electricity or for any other purpose, whether or not such installation is owned by a public utility.

88.68 88.68 Construction of drain across public highway; construction of bridges across drains.

88.68(1) (1) Any drain across a public highway shall be constructed according to like specifications and at the same time as the drain above such highway is constructed.

88.68(2) (2) If the construction of a drain across a public highway makes necessary the construction or reconstruction of a bridge, the drainage board and the officers in charge of maintenance of the highway shall try to agree on the best method of constructing or reconstructing the bridge. If they are unable to agree, the matter shall be submitted to arbitration under ch. 788. If it is determined to reconstruct or add to the bridge, the district shall pay the costs incident to the reconstruction or addition. If it is determined to construct a new bridge, the drainage district shall pay to the unit of government responsible for the maintenance of the highway a sum that is considered equivalent to the value of the bridge in place at the time of the construction of the drain.

88.68(3) (3) If the unit of government in charge of maintenance of a highway decides to construct a new bridge across a drain, the officers in charge of such construction shall notify the drainage board thereof by registered mail addressed to the secretary of the board. If the board within 10 days after receiving such notice notifies the officers in charge of construction of the bridge that it desires such bridge to be constructed with a certain clear span, the bridge shall be constructed in accordance with the board’s order. If the board’s order requires the bridge to be built of greater span than is necessary for proper drainage of flood waters, any excess cost resulting from such order shall be paid by the drainage district.

88.68(4) (4) Whenever the cleaning out, deepening or reconstruction of a drain crossing a public highway requires the lowering of a culvert through such highway in order to provide effective drainage, the drainage board may proceed to lower such culvert only after obtaining a permit under s. 86.07 (2) (a). In lieu of issuing a permit, the authority in charge of maintenance of the highway may proceed to do the work itself. Except as provided in s. 86.075, the expenses involved in such lowering shall be borne by the drainage district, or as provided by mutual agreement between the highway authority and the drainage board.

88.68 History History: 1993 a. 456; 2015 a. 231.

88.69 88.69 District liable for damage to land outside its boundaries.

88.69(1) (1) A drainage district is liable for any damages resulting to lands outside its boundaries because of work done within its boundaries. In this subsection “damages” means only such damages as could be recovered against a natural person for like injury resulting from like work. No action shall be taken to collect damages to outside lands until the damages actually have resulted. In cases of construction of new drains, the state may proceed pursuant to ch. 813 to prevent damage or injury to lands owned by the state.

88.69(2) (2) If through the construction of a drain by a higher district a lower drainage district incurs extra expense in providing means to carry off the waters or remove the sediment flowing from the higher district, the higher district is liable for such increased cost. The amount of such increased cost may be agreed upon between the districts or may be recovered in an action at law.

88.69 History History: Sup. Ct. Order, 67 Wis. 2d 585, 774 (1975).

88.70 88.70 Formation of subdistrict to obtain more thorough drainage.

88.70(1) (1) If the owners of land in a part of a drainage district desire a more thorough or different drainage than the drains of the district currently provide or than the planned reconstruction will provide, a majority of the owners may petition the board to have specified lands set aside as a subdistrict of the drainage district in order to permit a more thorough or different drainage.

88.70(2) (2) The board shall fix a time and place of a hearing on the petition and shall cause notice to be given under s. 88.05 (2) (b) to the persons specified in s. 88.05 (4) (b).

88.70(3) (3) If the drainage board is satisfied that the public health or public welfare will be promoted by more thorough or different drainage and that the benefits of the drainage will exceed the cost of construction, the drainage board shall order that a subdistrict of the drainage district be formed, give it a name or number and fix its boundaries.

88.70(4) (4) After organizing the subdistrict, the board shall prepare a plan and specifications for the more thorough or different drainage, estimate the cost of construction of the drainage, estimate the cost of all additional bridges made necessary because of the drainage, and assess benefits against and award damages to all lands in the subdistrict that are benefited or damaged by the more thorough or different drainage. Assessments and awards shall be made substantially as provided in s. 88.35.

88.70(5) (5) Nothing in this section is intended to relieve owners of lands in the subdistrict of the proportionate share of their obligations to the district in which the subdistrict was formed.

88.70 History History: 1993 a. 456.

88.71 88.71 Enlarging or supplementing existing drains.

88.71(1) (1) Whenever the board is petitioned by the owners of one-tenth of the lands in a district to enlarge existing drains or to lay out and construct new drains in such district, or whenever the board is of the opinion that the plan of drainage of the district is or will be insufficient to effect a thorough drainage of such district or any portion thereof, and that enlarged or supplemental drains are required to effect such drainage, the board shall cause to be prepared plans and specifications for the enlargement of existing drains or for the construction of sufficient supplemental drains to complete the drainage of such district.

88.71(1m) (1m) If the drainage board is satisfied that the public health or welfare will be promoted by the enlarged or supplemental drains and that the benefits from the drains will exceed the cost of construction, the drainage board shall order the construction of the enlarged or supplemental drains.

88.71(2) (2) The board shall estimate the cost of construction of the enlargements or supplemental drains together with the cost of all additional bridges that the district must build and shall assess the costs against the lands benefited, as provided in ss. 88.35 and 88.36 and in this subsection. The board shall award to each parcel of land the damages caused to the land by the supplemental work and shall assess benefits against the lands benefited by the supplemental work. The benefits shall be apportioned and assessed so that all assessed lands are required to pay a sum total for the construction of the total drainage proportionate to the actual benefits received by the lands from the total drainage.

88.71 History History: 1993 a. 456.

88.72 88.72 Removal of dams or other obstructions in drainage outlets.

88.72(1) (1) The owners of more than one-tenth of the lands within any district may file with the drainage board a petition setting forth:

88.72(1)(a) (a) That the drains constructed within such district do not afford an adequate outlet for drainage;

88.72(1)(b) (b) That it is necessary in order to give an adequate outlet to remove certain dams or other obstructions from waters or streams or to deepen, straighten or widen the same either within or beyond the boundaries of such district; and

88.72(1)(c) (c) That the public health and the public welfare will be promoted by such work and that the navigability of such waters or streams and other public rights therein will not be materially impaired.

88.72(2) (2) Upon receiving a petition under sub. (1), the drainage board shall fix a time and place of a hearing on the petition 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) (a), to the owner of any dam sought to be removed and to all riparian owners affected by the removal.

88.72(3) (3) At the hearing on the petition, any interested person may appear and contest its sufficiency and the necessity for the work. If the drainage board finds that the petition has the proper number of signers and that to afford an adequate outlet it is necessary to remove dams or other obstructions from waters and streams which may be navigable, or to straighten, clean out, deepen or widen any waters or streams either within or beyond the limits of the district, the board shall obtain any permit that is required under this chapter or ch. 30 or 31.

88.72(4) (4) Within 30 days after the department of natural resources has issued all of the permits as required under this chapter and chs. 30 and 31, the board shall proceed to estimate the cost of the work, including the expenses of the proceeding together with the damages that will result from the work, and shall, within a reasonable time, award damages to all lands damaged by the work and assess the cost of the work against the lands in the district in proportion to the assessment of benefits then in force.

88.72(5) (5) The drainage board may grant the petition and order the additional work done only if the drainage board is satisfied that:

88.72(5)(a) (a) The intended result can be effectively achieved by additional work at a reasonable cost;

88.72(5)(b) (b) The public welfare will be promoted by such additional work;

88.72(5)(c) (c) The cost of such additional work, when added to all expenses previously incurred by the district will not exceed the total benefits theretofore assessed; and

88.72(5)(d) (d) A petition, which is the same in substance or effect as the current petition, has not previously been denied by the drainage board.

88.72 History History: 1973 c. 336; 1993 a. 456; 1999 a. 9.

88.73 88.73 Providing drainage for lands assessed but not adequately drained.