LRB-0669/2
EVM&RNK:cjs&wlj
2015 - 2016 LEGISLATURE
January 7, 2016 - Introduced by Representatives Sanfelippo, Craig, E. Brooks,
Kleefisch, Kuglitsch, Murphy, A. Ott, Ripp, Skowronski and Ballweg,
cosponsored by Senators Wanggaard and Marklein. Referred to Committee
on Agriculture.
AB653,1,6
1An Act to repeal 88.83 (1m) and 88.83 (1r);
to renumber and amend 88.83 (1);
2to amend 88.13, 88.62 (3) (a), 88.83 (title), 88.83 (3), 88.83 (4), 88.83 (5) and
3281.36 (5) (intro.); and
to create 30.20 (1g) (d), 88.075, 88.17 (2h) (c), 88.17 (2h)
4(d), 88.17 (2r), 88.212 (4), 88.31 (7r), 88.74, 88.785, 88.83 (1c) and 88.83 (2m) of
5the statutes;
relating to: drainage districts and regulating the removal of
6material from 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 must 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) the
municipality agrees to ensure district access to, and maintenance of, drain access
corridors; 2) the municipality agrees, upon request by the district, to maintain and
repair former district drains; and 3) the district may complete any maintenance work
not performed by the municipality and assess the costs to certain properties that
were subject to assessment by the district prior to the transfer of jurisdiction.
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 regarding continuing
maintenance and repair of former district drains and access corridors, 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 a district is located entirely or partially within the
corporate limits of a city or village, the chief executive of the city or village or his or
her designee is also a member of the board.
Under current law, DATCP 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 (DNR) 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.
Under current law, a person may not discharge dredged material into a wetland
unless the discharge is authorized by a wetland general permit or an individual
permit issued by DNR or the discharge is exempt from the permit requirement.
Among the activities that are generally exempt from the permit requirement are
normal farming, irrigation ditch construction, and drainage ditch maintenance.
Current law provides that even if these activities are exempt, a permit must still be
obtained if the discharge is incidental to an activity to bring a wetland into a use for
which it was not previously subject and if the discharge affects the wetland in certain
other ways. This bill specifies that in order for the permit exemption to be
inapplicable, the activity must be one that brings a wetland into a land use for which
it was not previously subject.
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.
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:
AB653,1
1Section
1. 30.20 (1g) (d) of the statutes is created to read:
AB653,4,3
130.20
(1g) (d) The removal of material by a drainage district from the bed of
2a ditch operated by the drainage district is exempt from the individual and general
3permit requirements under this section if all of the following apply:
AB653,4,44
1. The material is removed for the purpose of maintaining the ditch.
AB653,4,65
2. The removal of the material does not violate any applicable floodplain zoning
6ordinances.
AB653,4,107
3. The material is not removed from an area that is listed in a database
8maintained by the department identifying contaminated properties and other
9activities related to the investigation and cleanup of contaminated soil or
10groundwater in this state.
AB653,4,1111
4. If the removed material is spread on land, all of the following apply:
AB653,4,1212
a. The material is graded and smoothed to blend into cultivated lands.
AB653,4,1313
b. The surface slope of the material does not exceed a slope of 8 to 1.
AB653,4,1414
c. The material is not more than 2 feet deep at the top of the bank of the ditch.
AB653,4,1715
5. No portion of a pile of the removed material is closer than 12 feet from the
16top of the bank of the ditch, is piled at any angle other than a stable angle of repose
17for that material, nor has a slope exceeding a slope of 2 to 1.
AB653,4,2018
6. The drainage district, in maintaining the drainage ditch, does all of the
19following in order to prevent the spread of invasive species or the spread of viruses
20from one navigable water to another:
AB653,4,2321
a. Removes plants, animals, and mud and other debris from all equipment it
22uses to maintain the drainage ditch before the equipment is placed in any other
23navigable water.
AB653,5,224
b. Washes all equipment that it uses to maintain the drainage ditch with high
25pressure water of not less than 2000 pounds per square inch before it is placed in any
1other navigable water or allows the equipment to dry for not less than 5 days before
2it is placed in any other navigable water.
AB653,5,43
7. The material is not discharged into a wetland that is identified by the
4department under s. 281.36 (3g) (d) 1. to 7.
AB653,5,65
8. If the drainage ditch is located south of STH 29, the removal activity does
6not occur between March 15 and the immediately following May 15.
AB653,5,87
9. If the drainage ditch is located north of STH 29, the removal activity does
8not occur between April 1 and the immediately following June 1.
AB653,5,119
10. If the drainage ditch is classified by the department as a trout stream, the
10drainage district coordinates the time of its removal activities with department
11fisheries staff.
AB653,2
12Section
2. 88.075 of the statutes is created to read:
AB653,5,18
1388.075 Transfer of certain authority.
(1) If a drainage district has been
14inactive for 3 or more years, the court may transfer authority to make appointments
15to the drainage board under s. 88.17 to the county board of the county in which the
16drainage district is primarily located. A transfer may be ordered under this section
17upon a petition by the county board or upon the court's own motion, with the approval
18of the county board.
AB653,5,20
19(2) If authority is transferred under sub. (1), the county board shall have all
20of the duties and powers specified for the court under s. 88.17.
AB653,3
21Section
3. 88.13 of the statutes is amended to read:
AB653,6,6
2288.13 Right to enter lands of drainage district. Whenever necessary for
23any purpose connected with the organization of a district or the construction,
24maintenance or repair of drains and other works, members of the board,
25representatives of the department of agriculture, trade and consumer protection,
1and persons intending to bid on or to whom contracts have been let for the
2construction of the works within a district
or on former district lands transferred
3under s. 88.83 and their respective agents and employees may go upon any lands
4proposed for inclusion or included within a district or on adjoining lands
or on former
5district lands transferred under s. 88.83, and are not guilty of trespass therefor but
6are liable for unnecessary damage caused to crops or structures.
AB653,4
7Section
4. 88.17 (2h) (c) of the statutes is created to read:
AB653,6,128
88.17
(2h) (c) Local or statewide agriculture, engineering, local government,
9or real estate organizations, including the Wisconsin Potato and Vegetable Growers
10Association, the Wisconsin State Cranberry Growers Association, the Wisconsin
11Farm Bureau Federation, the Wisconsin Farmers Union, the Dairy Business
12Association, and the Wisconsin Dairy Products Association.
AB653,5
13Section
5. 88.17 (2h) (d) of the statutes is created to read:
AB653,6,1614
88.17
(2h) (d) The department of agriculture, trade and consumer protection,
15which may recommend persons who have engineering experience related to water
16resources and agriculture.
AB653,6
17Section
6. 88.17 (2r) of the statutes is created to read:
AB653,7,218
88.17
(2r) Notwithstanding subs. (1) to (2p), if a drainage district is located
19entirely or partially within the corporate limits of a city or village, the chief executive
20of the city or village or his or her designee shall be a member of the board. A member
21required under this subsection does not replace a member or count toward the
22minimum or maximum number of members under sub. (1) or (2) or toward the
23determination of whether a quorum exists and may not be eliminated under sub. (2).
24A member under this subsection may vote only on matters related to a drainage
1district that is located entirely or partially within the corporate limits of the city or
2village that the member represents.
AB653,7
3Section
7. 88.212 (4) of the statutes is created to read:
AB653,7,74
88.212
(4) If any portion of a drainage district that is a subject matter of a
5drainage board meeting is located in a city, village, or town, notify the city, village,
6or town of the date, time, and subject matter of the meeting. A notification under this
7subsection may be in an electronic format.
AB653,8
8Section
8. 88.31 (7r) of the statutes is created to read:
AB653,7,129
88.31
(7r) A drainage district that is exempt from the individual and general
10permit requirements under s. 30.20 as specified under s. 30.20 (1g) (d) is exempt from
11the permit requirements and procedures under subs. (1) to (7) with respect to that
12removal.
AB653,9
13Section
9. 88.62 (3) (a) of the statutes is amended to read:
AB653,7,1914
88.62
(3) (a)
If Except for a removal of material that is exempt from the
15individual and general permit requirements under s. 30.20 as specified under s.
1630.20 (1g) (d) and except as provided under par. (b), if drainage work is undertaken
17in navigable waters, the drainage board shall obtain a permit under s. 30.20 or 88.31
18or ch. 31, as directed by the department of natural resources
, except as provided in
19par. (b).
AB653,10
20Section
10. 88.74 of the statutes is created to read:
AB653,7,22
2188.74 District corridors. (1) (a) Except as provided in par. (b), the board shall
22establish all of the following as district corridors: