Chapter 88

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.

88.73(1) (1) Any person owning lands that have been assessed for costs of construction but which are in need of drainage because of being shut off from access to any district drain or because the slope of the land is such that it is impractical to drain the land into a district drain without crossing the lands of others may file with the drainage board a verified petition stating such facts, including a description of the lands sought to be drained and asking that a drain be laid out from the petitioner’s lands to the district drain.

88.73(2) (2) The petitioner and all persons whose lands will be directly affected by the proposed drain may, in writing, waive any or all notices of hearings and may consent to an immediate hearing on the petition, upon which the drainage board may enter an order to construct the drain. The board’s order shall include all of the provisions of s. 88.35 (1). If no written waiver or consent is filed by all persons immediately interested, the procedure on a petition under this section shall be substantially as outlined in ss. 88.35 and 88.36.

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

88.74 88.74 District corridors.

88.74(1) (1) 

88.74(1)(a) (a) Except as provided in par. (b), the board shall establish all of the following as district corridors:

88.74(1)(a)1. 1. A corridor which extends 20 feet from the top of the ditch bank on each side of a district ditch.

88.74(1)(a)2. 2. A corridor extending 20 feet from the centerline on each side of any other district drain or facility.

88.74(1)(b) (b) Upon notice to affected landowners, the board may establish and maintain a wider corridor if a wider corridor is necessary to meet any of the purposes specified under sub. (3).

88.74(2) (2) The board shall provide notice of any corridor established under sub. (1) to the county and the city, village, or town in which the corridor is located.

88.74(3) (3) The board shall maintain a corridor established under sub. (1) to accomplish all of the following purposes:

88.74(3)(a) (a) To provide the board with effective access to the drain or facility, including access for vehicles or equipment.

88.74(3)(b) (b) To protect water quality in the drain or facility.

88.74(3)(c) (c) To allow for the placement of dredge materials from maintaining the drain or facility.

88.74(4) (4) 

88.74(4)(a) (a) Except as provided in pars. (b) and (d), the board may, without prior notice to the landowner, enter a corridor established under sub. (1) to inspect, survey, maintain, repair, restore, or improve a drain, facility, or corridor.

88.74(4)(b) (b) Before doing any of the following in a corridor, the board shall notify the landowner of the pending action:

88.74(4)(b)1. 1. Cutting a tree that is more than 6 inches in diameter measured at breast height.

88.74(4)(b)2. 2. Excavating or depositing materials in the corridor.

88.74(4)(c) (c) Notice under par. (b) may be given at any time before performance of the work and may be given in person, by telephone, by mail, or, if the landowner is not available, by posting notice at a conspicuous location at an entrance to the land.

88.74(4)(d) (d) If a drainage board intends to perform general maintenance work in a corridor during the year, the board shall provide notice to the landowner not later than March 1. Notice under this paragraph shall be given in person, by telephone, by mail, or by electronic means, or, if notice cannot be provided in one of these manners, by posting notice at a conspicuous location at an entrance to the land. This paragraph does not apply to emergency maintenance work.

88.74(5) (5) 

88.74(5)(a) (a) No person may do any of the following in a corridor established under sub. (1) without written permission from the board:

88.74(5)(a)1. 1. Engage in row cropping in the corridor.

88.74(5)(a)2. 2. Place any obstruction in the corridor that interferes with the board’s ability to accomplish a purpose under sub. (3).

88.74(5)(b) (b) A person who violates par. (a) may not recover damages with regard to any damage to crops or obstructions caused by actions taken by the board under sub. (3).

88.74(5)(c) (c) Paragraph (a) does not require a landowner to remove any building or fixture constructed or installed in a corridor prior to September 1, 1999, or any structure that does not interfere with the board’s maintenance of a drain and that was placed in the corridor for the purpose of providing drainage.

88.74(6) (6) No city, village, town, or county may by ordinance, resolution, or any other means restrict, or impose other conditions related to, the board’s maintenance of district corridors or ditches unless specifically required by federal law.

88.74 History History: 2017 a. 115.

subch. VII of ch. 88 SUBCHAPTER VII

ENLARGEMENT, CONSOLIDATION, DIVISION
AND DISSOLUTION OF DRAINAGE DISTRICT

88.77 88.77 Annexation of lands upon petition of owners.

88.77(1) (1) If owners of lands adjacent to any drainage district want the lands to be annexed to the district, they may file with the drainage board a petition for annexation. The petition must be signed either by more than one-half of all of the owners of lands in the proposed annex, who shall represent more than one-third of the lands in the proposed annex, or by the owners of more than one-half of the lands in the proposed annex. The petition shall describe the lands sought to be annexed and shall set forth the names of the owners of all of those lands so far as the owners are known. The petition shall be accompanied by a plat showing the original district and the proposed annex.

88.77(2) (2) If the undrained portion of the area proposed to be annexed to the district exceeds 200 acres, the drainage board shall request the report described under s. 88.11 (3) from the department of agriculture, trade and consumer protection on the annexation. Within 60 days after the request, the department shall prepare and return a copy of the report and its approval or disapproval, as provided under s. 88.35 (7).

88.77(3) (3) When the drainage board receives the reports required by s. 88.11, the board shall fix a time and place of a hearing on the petition under sub. (1) 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).

88.77(4) (4) The drainage board shall issue an order annexing the territory to the drainage district if at the hearing the board finds all of the following facts:

88.77(4)(a) (a) That the petition has sufficient signers.

88.77(4)(b) (b) That the lands described in the petition, together with any additional lands recommended by the board for drainage, will be improved by the proposed annexation.

88.77(4)(c) (c) That the public health or public welfare will be promoted by the annexation.

88.77(4)(d) (d) That the cost of construction will not exceed 75 percent of the benefits to be derived from the proposed work.

88.77(4)(e) (e) That the proposed work will not materially injure or impair fish or wildlife habitat, scenic beauty, the conservation of natural resources or other public rights or interests.

88.77(5) (5) If the board finds the facts stated in sub. (4) (a) to (c) and (e) but finds that the cost of construction will exceed 75 percent of the benefits to be derived from the proposed work, the board nevertheless shall annex the territory to the drainage district if, within 10 days of the order being issued under sub. (4), the petitioners file with the board a bond with sufficient sureties to be approved by the board and conditioned for the payment of the excess or the petitioners deposit and leave with the board a sum of money that the board determines will cover the excess.

88.77(6) (6) Upon issuance of the order annexing the territory to the drainage district, the drainage board shall proceed as provided under ss. 88.35 and 88.36.

88.77 History History: 1993 a. 456; 2007 a. 121.

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

88.78 88.78 Annexation of benefited lands.

88.78(1) (1) Whenever any lands outside a drainage district are in fact receiving the benefits of any drain of such district but such fact was not evident or was inadvertently overlooked at the time of organization of the district, such benefited lands may be annexed under the procedure prescribed in this section.

88.78(2) (2) Any owner of land within the district may file with the board a petition to have the benefited lands annexed to the district and assessed benefits and assessed for costs as other lands in the district. The petition shall describe the benefited lands and how they are benefited. Upon the filing of the petition, the drainage district shall issue an order directing that the owners of the benefited lands be notified of the filing and the contents of the petition and requiring the owners to show cause at a fixed time and place, not less than 20 days after the petition is filed, why their lands should not be brought into the district and assessed.

88.78(3) (3) Any owner of lands sought to be annexed may object to the petition at the hearing thereon. If the drainage board is satisfied that any or all of the lands are receiving benefits from any district drain, the drainage board shall so find in writing and shall issue an order requiring that the benefited lands be made a part of the district.

88.78(4) (4) The board shall assess benefits and assess for costs and award damages to each tract of the annexed lands.

88.78 History History: 1993 a. 456.

88.785 88.785 Certain annexations prohibited.

88.785(1) (1) Notwithstanding ss. 88.34, 88.77, and 88.78, no lands that are within the corporate limits of a city, a village, or, if the town has a permit for storm water management under s. 283.33, a town may be included in a newly organized drainage district or annexed to a drainage district unless the governing body of the city, village, or town adopts a resolution approving the inclusion or annexation.

88.785(2) (2) Notwithstanding ss. 88.77 and 88.78, no lands that are located in a county in which no portion of the drainage district is located may be annexed to a drainage district.

88.785 History History: 2017 a. 115.

88.79 88.79 Consolidation of drainage districts in process of organization.

88.79(1) (1) Two or more drainage districts petitioned for or in the process of organization may, upon order of the court, be consolidated to form a single drainage district. The order of consolidation may be issued only after a public hearing as specified in this section.

88.79(2) (2) The consolidation process may be initiated either by the court on its own motion, by recommendation of the board made to the court, or by petition signed by the owners of at least 10 percent of the lands in each of the districts sought to be consolidated. If such districts are under the jurisdiction of different courts, the proceeding shall be conducted by the court having jurisdiction of the larger area.

88.79(3) (3) The court shall fix a time and place of a hearing on the proposed consolidation and shall cause notice of the hearing to be given under s. 88.05 (1) (b) to the persons specified in s. 88.05 (4) (b). If the court after the hearing is of the opinion that the drainage districts would be benefited by the proposed consolidation, it shall so order, giving a name to the consolidated district.

88.79 History History: 1993 a. 456.

88.791 88.791 Consolidation of existing drainage districts.

88.791(1) (1) Two or more existing drainage districts may, upon an order issued by the drainage board, be consolidated to form a single drainage district. An order of consolidation may be issued only after a public hearing as specified in this section.

88.791(2) (2) The consolidation process may be initiated by a petition that is signed by the owners of at least 10 percent of the lands in each of the districts sought to be consolidated.

88.791(3) (3) The drainage board shall fix a time and place of a hearing on the proposed consolidation 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) (b). If after the hearing the drainage board is of the opinion that the drainage districts would be benefited by the proposed consolidation, it shall so order, giving a name to the consolidated district.

88.791(4) (4) Upon entry of the order of consolidation, the records of the districts so consolidated shall be the records of the consolidated district.

88.791(5) (5) Assessments made against lands in the several districts so consolidated shall remain in full force and the lien thereof is not affected by such consolidation.

88.791(6) (6) After such consolidation, the benefits of the consolidated district may be reassessed to render them just and equitable as a basis for future assessments for costs, subject to s. 88.02.

88.791 History History: 1993 a. 456 ss. 100, 101.

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

88.80 88.80 Withdrawal of lands from drainage district.

88.80(1) (1) Any person owning lands within a drainage district may, under an order issued by the drainage board, withdraw the lands from the district if:

88.80(1)(a) (a) All benefits assessed against such lands have been paid; and

88.80(1)(b) (b) The lands to be withdrawn will receive no benefit from the drainage district; and

88.80(1)(c) (c) The drainage district will not be materially injured by the withdrawal of such lands.

88.80(2) (2) The petition for the withdrawal shall be filed with the board. The board shall determine whether all benefits assessed against the land have been paid.

88.80(3) (3) When the petition has been filed, the drainage board shall fix the 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) (b). If the drainage board finds that the conditions of sub. (1) have been met, it shall issue an order detaching the lands from the district. The drainage board may require the petitioner to pay the expenses connected with the hearing.