2017 - 2018 LEGISLATURE
April 13, 2017 - Introduced by Senators Wanggaard and Craig, cosponsored by
Representatives Sanfelippo, Vos, Ballweg, E. Brooks, R. Brooks, Kuglitsch,
Kulp, Loudenbeck, Murphy, Novak, Ripp, Skowronski, Weatherston and
Wichgers. Referred to Committee on Agriculture, Small Business and
1An Act to repeal
88.83 (1m) and 88.83 (1r); to renumber
87.30 (1m) (a) and 2
87.30 (1m) (b) and (c); to renumber and amend
88.83 (1); to amend
(1m) (intro.), 88.13, 88.24 (intro.), 88.62 (3) (a), 88.63 (2), 88.83 (title), 88.83 (3), 4
88.83 (4), 88.83 (5), 281.36 (3b) (b), 281.36 (3m) (a), 281.36 (6) (a) (intro.) and 5
281.36 (9) (a) (intro.); and to create
30.20 (1g) (d), 70.32 (5), 87.30 (1m) (a) 6
(intro.), 87.30 (1m) (am), 88.17 (2h) (c), 88.17 (2h) (d), 88.17 (2r), 88.212 (4), 7
88.31 (7r), 88.74, 88.785, 88.817, 88.83 (1c), 88.83 (2m) and 281.36 (4m) of the 8
statutes; relating to: drainage districts and regulating the removal of material
9from certain drainage ditches.
Analysis by the Legislative Reference Bureau
This bill makes various changes to the law relating to drainage districts.
Under current law, the owners of the majority of the land in a drainage district
that is located entirely within the boundaries of a city or village, or partly within the
boundaries of a city, village, or town (municipality), may petition the drainage board
(board) having jurisdiction over the district to transfer jurisdiction of the district, or
that part of the district that is located in the municipality, to the municipality. If the
district is located only partially within a municipality, however, the district and the
municipality must be in agreement regarding the terms of transfer. If, after a
hearing, the board finds that the petition requirements have been met, the board
must issue an order transferring jurisdiction.
Also under current law, a city or village may adopt a resolution stating that the
city or village is willing to accept a drain or part of a drain and to administer it under
city or village drainage laws, and may petition the board with jurisdiction over the
drain to transfer jurisdiction over the drain from the district to the city or village.
After a hearing the board may, but is not required to, issue an order transferring
jurisdiction of the drain or part of the drain to the city or village.
Under this bill, the owners of a majority of the land proposed to be transferred
in a drainage district that is located entirely, or partly, within the boundaries of a
municipality may petition the board having jurisdiction over the district to transfer
jurisdiction of the district, or a part of the district that is located in the municipality,
to the municipality. After a hearing, the board may order transfer of jurisdiction if
it finds that a sufficient number of owners has signed the petition, the governing
body of the municipality approves the transfer, and the municipality and district
have entered into an agreement that contains the following items: 1) a statement of
the goal of the agreement; 2) specification of monetary obligations of the municipality
and district; 3) the municipality agrees to ensure district access to, and maintenance
of, drain access corridors; 4) the municipality agrees, upon request by the district, to
maintain and repair former district drains; and 5) upon declaratory judgment by a
court, the district may complete any maintenance work not performed by the
municipality and assess the costs to the municipality.
Also under this bill, a municipality may petition the board with jurisdiction
over a drain to transfer jurisdiction of the drain or part of the drain to the
municipality. After a hearing, the board may, but is not required to, issue an order
transferring jurisdiction of the drain or part of the drain to the municipality if the
municipality has entered into an agreement with the district, as described above.
Under current law, members of the drainage district board are appointed by the
court having jurisdiction over the district. In general, the board is made up of three
or five persons selected from persons recommended by a county committee on
agriculture and extension education or certain landowners owning property in the
district. Under this bill, if the board has jurisdiction over a district that is located
entirely or partially within the corporate limits of a city or village, the board must,
with an exception, be made up of five members and one of those members must be
the chief executive, or his or her designee, of a city or village within which a district
Under current law, the Department of Agriculture, Trade and Consumer
Protection has promulgated rules governing drainage district drain access corridors.
This bill provides statutory regulation of district access corridors, which regulations
are generally consistent with current DATCP rules. Specifically, the board must
establish district corridors extending 20 feet from the top of the ditch bank on each
side of a district ditch and 20 feet from the centerline on each side of any other district
drain or facility. The board may, upon notice to affected landowners, provide for a
wider corridor. The board must provide notice of these corridors to the county and
the municipality in which the corridor is located.
District corridors are to be maintained by the board so as to allow effective
access and protect water quality in the district drain or facility. The board is, with
limited exceptions, authorized to access, maintain, and improve the corridor without
prior notice to the landowner. The landowner is also generally prohibited from
taking certain actions within the corridor, including row cropping and placement of
any obstruction that interferes with the district's ability to maintain the corridor.
Municipalities and counties are prohibited from restricting the board's maintenance
of corridors and ditches.
Also under this bill, lands that are within the corporate limits of a city, village,
or certain towns may not 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. Also, no lands that are
located in a county in which no portion of the drainage district is located may be
annexed to the district.
Current law generally prohibits a person from removing material from the bed
of a navigable body of water unless the Department of Natural Resources has issued
an individual permit or a general permit authorizing the removal. This bill creates
an exemption from this prohibition for the removal of material from the bed of a
drainage ditch operated by a drainage district. In order for the exemption to apply,
certain conditions must be met including that the removal is for the purpose of
maintaining the ditch, the material is not removed from an area listed by DNR in a
database identifying contaminated properties, and the drainage district takes
certain action to clean its equipment in order to prevent the spread of invasive
species or viruses from one navigable water to another.
Current law prohibits any person from placing or maintaining any structure,
building, fill, or development within any floodplain in violation of a floodplain zoning
ordinance adopted by a county, city, or village or by a DNR order or determination.
Under current law, a floodplain zoning ordinance does not apply to lands adjacent
to farm drainage ditches if the lands are not within the floodplain of a natural
navigable stream or river, those parts of the drainage ditches adjacent to these lands
were nonnavigable streams before ditching, and the lands are maintained in
nonstructural agricultural use. This bill adds that a floodplain zoning ordinance also
does not apply to lands adjacent to farm drainage ditches if the farm drainage ditch
is subject to the jurisdiction of a drainage district, the disposal of material in a
floodplain is within the drainage district corridor, and the lands adjacent to the
corridor are maintained in nonstructural agricultural use.
Under current law, DNR must issue wetland general permits for discharges of
dredged or fill material into certain wetlands and may require a person to apply for
and obtain a wetland individual permit if DNR determines that conditions specific
to the site require additional restrictions on the discharge in order to provide
reasonable assurance that no significant adverse impacts to wetland functional
values will occur. Under current law, a wetland general or individual permit issued
by DNR also constitutes a state water quality certification, which is required under
the federal Clean Water Act in order for a person to obtain a federal permit for such
a discharge into federal wetlands. Under the federal Clean Water Act, a state may
also waive the requirement for certification.
This bill creates an exemption to wetland permitting requirements for any
discharge that is the result of activity undertaken by a drainage district to maintain
drainage district drains in accordance with plans and specifications approved by the
Department of Agriculture, Trade and Consumer Protection, and requires DNR to
waive any state water quality certification requested under the federal Clean Water
Act for such a discharge.
Current law also requires a drainage district board to obtain a permit to conduct
certain activities affecting a drainage district drain including repairing, enlarging,
clearing, or maintaining the drain (drain maintenance permit). This bill exempts a
drainage district board from the requirement to obtain a drain maintenance permit
to remove material from the bed of a drainage district drain if the board is also
exempt from the requirement to obtain a permit from DNR to remove the material.
Finally, the bill provides that, for property tax purposes, an assessor must
assess the land within a district corridor in the same property class as the adjoining
land, if the land within the corridor and the adjoining land are owned by the same
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
30.20 (1g) (d) of the statutes is created to read:
(d) The removal of material by a drainage district from the bed of 3
a ditch operated by the drainage district is exempt from the individual and general 4
permit requirements under this section if all of the following apply:
1. The material is removed for the purpose of maintaining the ditch.
2. The material is not removed from an area that is listed in a database 7
maintained by the department identifying contaminated properties and other 8
activities related to the investigation and cleanup of contaminated soil or 9
groundwater in this state.
3. If the removed material is spread on land, all of the following apply:
a. The material is graded and smoothed to blend into cultivated lands.
b. The surface slope of the material does not exceed a slope of 8 to 1.
c. The material is not more than 2 feet deep at the top of the bank of the ditch.
4. If the removed material is placed in a district corridor established under s. 4
88.74, no portion of a pile of the removed material is closer than 12 feet from the top 5
of the bank of the ditch, is piled at any angle other than a stable angle of repose for 6
that material, nor has a slope exceeding a slope of 2 to 1.
5. The drainage district, in maintaining the drainage ditch, does all of the 8
following in order to prevent the spread of invasive species or the spread of viruses 9
from one navigable water to another:
a. Removes plants, animals, and mud and other debris from all equipment it 11
uses to maintain the drainage ditch before the equipment is placed in any other 12
b. Washes all equipment that it uses to maintain the drainage ditch with high 14
pressure water of not less than 2,000 pounds per square inch before it is placed in 15
any other navigable water or allows the equipment to dry for not less than 5 days 16
before it is placed in any other navigable water.
6. The material is not discharged into a wetland that is identified by the 18
department under s. 281.36 (3g) (d) 1. to 7.
7. Except as provided in this subdivision, the removal activity does not occur 20
between March 15 and the immediately following June 1. A department fish 21
biologist assigned to the area in which the removal activity is located may waive the 22
requirement that the limitation in this subdivision apply to an exemption under this 23
8. If the drainage ditch is classified by the department as a trout stream or 2
tributary of a trout stream, the drainage district coordinates the time of its removal 3
activities with department fisheries staff.
70.32 (5) of the statutes is created to read:
Beginning with the assessments as of January 1, 2017, the assessor 6
shall assess the land within a district corridor described under s. 88.74 in the same 7
class under sub. (2) (a) as the land adjoining the corridor, if the adjoining land and 8
the land within the corridor are owned by the same person.
87.30 (1m) (intro.) of the statutes is amended to read:
87.30 (1m) Jurisdiction over drainage ditches limited.
Notwithstanding any other provision of law or administrative rule promulgated 12
thereunder, a floodplain zoning ordinance required under sub. (1) does not apply to 13
lands adjacent to farm drainage ditches if either par. (a) or (am) applies
87.30 (1m) (a) (intro.) of the statutes is created to read:
(a) (intro.) All of the following apply:
87.30 (1m) (a) of the statutes is renumbered 87.30 (1m) (a) 1.
87.30 (1m) (am) of the statutes is created to read:
(am) All of the following apply:
1. The farm drainage ditch is subject to the jurisdiction of a drainage district 20
under ch. 88.