SB572: Bill Text

2015 Senate BILL 572

January 14, 2016 - Introduced by Senators Wanggaard and Marklein, cosponsored by Representatives Sanfelippo, Craig, E. Brooks, Kleefisch, Kuglitsch, Murphy, A. Ott, Ripp and Skowronski. Referred to Committee on Agriculture, Small Business, and Tourism.

SB572,1,6 An Act to repeal 88.83 (1m) and 88.83 (1r); to renumber and amend 88.83 (1); to amend 88.13, 88.62 (3) (a), 88.83 (title), 88.83 (3), 88.83 (4), 88.83 (5) and 281.36 (5) (intro.); and to create 30.20 (1g) (d), 88.075, 88.17 (2h) (c), 88.17 (2h) (d), 88.17 (2r), 88.212 (4), 88.31 (7r), 88.74, 88.785, 88.83 (1c) and 88.83 (2m) of the statutes; relating to: drainage districts and regulating the removal of material 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:

SB572,1 Section 1. 30.20 (1g) (d) of the statutes is created to read:

SB572,4,3 30.20 (1g) (d) The removal of material by a drainage district from the bed of a ditch operated by the drainage district is exempt from the individual and general permit requirements under this section if all of the following apply:

SB572,4,4 1. The material is removed for the purpose of maintaining the ditch.

SB572,4,6 2. The removal of the material does not violate any applicable floodplain zoning ordinances.

SB572,4,10 3. The material is not removed from an area that is listed in a database maintained by the department identifying contaminated properties and other activities related to the investigation and cleanup of contaminated soil or groundwater in this state.

SB572,4,11 4. If the removed material is spread on land, all of the following apply:

SB572,4,12 a. The material is graded and smoothed to blend into cultivated lands.

SB572,4,13 b. The surface slope of the material does not exceed a slope of 8 to 1.

SB572,4,14 c. The material is not more than 2 feet deep at the top of the bank of the ditch.

SB572,4,17 5. No portion of a pile of the removed material is closer than 12 feet from the top of the bank of the ditch, is piled at any angle other than a stable angle of repose for that material, nor has a slope exceeding a slope of 2 to 1.

SB572,4,20 6. The drainage district, in maintaining the drainage ditch, does all of the following in order to prevent the spread of invasive species or the spread of viruses from one navigable water to another:

SB572,4,23 a. Removes plants, animals, and mud and other debris from all equipment it uses to maintain the drainage ditch before the equipment is placed in any other navigable water.

SB572,5,2 b. Washes all equipment that it uses to maintain the drainage ditch with high pressure water of not less than 2000 pounds per square inch before it is placed in any other navigable water or allows the equipment to dry for not less than 5 days before it is placed in any other navigable water.

SB572,5,4 7. The material is not discharged into a wetland that is identified by the department under s. 281.36 (3g) (d) 1. to 7.

SB572,5,6 8. If the drainage ditch is located south of STH 29, the removal activity does not occur between March 15 and the immediately following May 15.

SB572,5,8 9. If the drainage ditch is located north of STH 29, the removal activity does not occur between April 1 and the immediately following June 1.

SB572,5,11 10. If the drainage ditch is classified by the department as a trout stream, the drainage district coordinates the time of its removal activities with department fisheries staff.

SB572,2 Section 2. 88.075 of the statutes is created to read:

SB572,5,18 88.075 Transfer of certain authority. (1) If a drainage district has been inactive for 3 or more years, the court may transfer authority to make appointments to the drainage board under s. 88.17 to the county board of the county in which the drainage district is primarily located. A transfer may be ordered under this section upon a petition by the county board or upon the court's own motion, with the approval of the county board.

SB572,5,20 (2) If authority is transferred under sub. (1), the county board shall have all of the duties and powers specified for the court under s. 88.17.

SB572,3 Section 3. 88.13 of the statutes is amended to read:

SB572,6,6 88.13 Right to enter lands of drainage district. Whenever necessary for any purpose connected with the organization of a district or the construction, maintenance or repair of drains and other works, members of the board, representatives of the department of agriculture, trade and consumer protection, and persons intending to bid on or to whom contracts have been let for the construction of the works within a district or on former district lands transferred under s. 88.83 and their respective agents and employees may go upon any lands proposed for inclusion or included within a district or on adjoining lands or on former district lands transferred under s. 88.83, and are not guilty of trespass therefor but are liable for unnecessary damage caused to crops or structures.

SB572,4 Section 4. 88.17 (2h) (c) of the statutes is created to read:

SB572,6,12 88.17 (2h) (c) Local or statewide agriculture, engineering, local government, or real estate organizations, including the Wisconsin Potato and Vegetable Growers Association, the Wisconsin State Cranberry Growers Association, the Wisconsin Farm Bureau Federation, the Wisconsin Farmers Union, the Dairy Business Association, and the Wisconsin Dairy Products Association.

SB572,5 Section 5. 88.17 (2h) (d) of the statutes is created to read:

SB572,6,16 88.17 (2h) (d) The department of agriculture, trade and consumer protection, which may recommend persons who have engineering experience related to water resources and agriculture.

SB572,6 Section 6. 88.17 (2r) of the statutes is created to read:

SB572,7,2 88.17 (2r) Notwithstanding subs. (1) to (2p), if a drainage 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 shall be a member of the board. A member required under this subsection does not replace a member or count toward the minimum or maximum number of members under sub. (1) or (2) or toward the determination of whether a quorum exists and may not be eliminated under sub. (2). A member under this subsection may vote only on matters related to a drainage district that is located entirely or partially within the corporate limits of the city or village that the member represents.

SB572,7 Section 7. 88.212 (4) of the statutes is created to read:

SB572,7,7 88.212 (4) If any portion of a drainage district that is a subject matter of a drainage board meeting is located in a city, village, or town, notify the city, village, or town of the date, time, and subject matter of the meeting. A notification under this subsection may be in an electronic format.

SB572,8 Section 8. 88.31 (7r) of the statutes is created to read:

SB572,7,12 88.31 (7r) A drainage district that is exempt from the individual and general permit requirements under s. 30.20 as specified under s. 30.20 (1g) (d) is exempt from the permit requirements and procedures under subs. (1) to (7) with respect to that removal.

SB572,9 Section 9. 88.62 (3) (a) of the statutes is amended to read:

SB572,7,19 88.62 (3) (a) If 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, except as provided in par. (b).

SB572,10 Section 10. 88.74 of the statutes is created to read:

SB572,7,22 88.74 District corridors. (1) (a) Except as provided in par. (b), the board shall establish all of the following as district corridors:

SB572,7,24 1. A corridor which extends 20 feet from the top of the ditch bank on each side of a district ditch.

SB572,8,2 2. A corridor extending 20 feet from the centerline on each side of any other district drain or facility.

SB572,8,5 (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).

SB572,8,7 (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.

SB572,8,9 (3) The board shall maintain a corridor established under sub. (1) to accomplish all of the following purposes:

SB572,8,11 (a) To provide the board with effective access to the drain or facility, including access for vehicles or equipment.

SB572,8,12 (b) To protect water quality in the drain or facility.

SB572,8,15 (4) (a) Except as provided in par. (b), 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.

SB572,8,17 (b) Before doing any of the following in a corridor, the board shall notify the landowner of the pending action:

SB572,8,19 1. Cutting a tree that is more than 6 inches in diameter measured at breast height.

SB572,8,20 2. Excavating or depositing materials in the corridor.

SB572,8,23 (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.

SB572,8,25 (5) (a) No person may do any of the following in a corridor established under sub. (1) without written permission from the board:

SB572,9,1 1. Engage in row cropping in the corridor.

SB572,9,3 2. Place any obstruction in the corridor that interferes with the board's ability to accomplish a purpose under sub. (3).

SB572,9,5 (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).

SB572,9,9 (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.

SB572,9,12 (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.

SB572,11 Section 11. 88.785 of the statutes is created to read:

SB572,9,21 88.785 Certain annexations prohibited. (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 operates a municipal utility that manages storm water or has entered into a maintenance agreement under s. 88.83 (2m) with the annexing drainage district covering the portion of the town proposed to be annexed, 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.

SB572,9,24 (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.

SB572,12 Section 12. 88.83 (title) of the statutes is amended to read:

SB572,10,1 88.83 (title) Transfer of district to city or village municipal jurisdiction.

SB572,13 Section 13. 88.83 (1) of the statutes is renumbered 88.83 (1g) and amended to read:

SB572,10,9 88.83 (1g) The owners of a majority of the land proposed to be transferred in any a drainage district located entirely or partially within the corporate limits of a city or village municipality may petition the drainage board having jurisdiction of the district to transfer jurisdiction thereof to the city or village of the part of the district proposed to be transferred that is located within the municipality to the municipality.

SB572,14 Section 14. 88.83 (1c) of the statutes is created to read:

SB572,10,11 88.83 (1c) In this section, "municipality" means a city, village, or town.

SB572,15 Section 15. 88.83 (1m) of the statutes is repealed.

SB572,16 Section 16. 88.83 (1r) of the statutes is repealed.

SB572,17 Section 17. 88.83 (2m) of the statutes is created to read:

SB572,10,18 88.83 (2m) If the proposed transfer of jurisdiction is of less than the entire district, jurisdiction of the part of the drainage district may not be transferred to a municipality unless the municipality to which jurisdiction will be transferred and the district have entered into an agreement to which all of the following apply: