AB246: Bill Text

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 person.

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:

AB246,1 Section 1. 30.20 (1g) (d) of the statutes is created to read:

AB246,4,4 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:

AB246,4,5 1. The material is removed for the purpose of maintaining the ditch.

AB246,4,9 2. 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.

AB246,4,10 3. If the removed material is spread on land, all of the following apply:

AB246,4,11 a. The material is graded and smoothed to blend into cultivated lands.

AB246,5,1 b. The surface slope of the material does not exceed a slope of 8 to 1.

AB246,5,2 c. The material is not more than 2 feet deep at the top of the bank of the ditch.

AB246,5,6 4. If the removed material is placed in a district corridor established under s. 88.74, 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.

AB246,5,9 5. 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:

AB246,5,12 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.

AB246,5,16 b. Washes all equipment that it uses to maintain the drainage ditch with high pressure water of not less than 2,000 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.

AB246,5,18 6. The material is not discharged into a wetland that is identified by the department under s. 281.36 (3g) (d) 1. to 7.

AB246,5,23 7. Except as provided in this subdivision, the removal activity does not occur between March 15 and the immediately following June 1. A department fish biologist assigned to the area in which the removal activity is located may waive the requirement that the limitation in this subdivision apply to an exemption under this paragraph.

AB246,6,3 8. If the drainage ditch is classified by the department as a trout stream or tributary of a trout stream, the drainage district coordinates the time of its removal activities with department fisheries staff.

AB246,2 Section 2. 70.32 (5) of the statutes is created to read:

AB246,6,8 70.32 (5) Beginning with the assessments as of January 1, 2017, the assessor shall assess the land within a district corridor described under s. 88.74 in the same class under sub. (2) (a) as the land adjoining the corridor, if the adjoining land and the land within the corridor are owned by the same person.

AB246,3 Section 3. 87.30 (1m) (intro.) of the statutes is amended to read:

AB246,6,13 87.30 (1m) Jurisdiction over drainage ditches limited. (intro.) Notwithstanding any other provision of law or administrative rule promulgated thereunder, a floodplain zoning ordinance required under sub. (1) does not apply to lands adjacent to farm drainage ditches if either par. (a) or (am) applies:

AB246,4 Section 4. 87.30 (1m) (a) (intro.) of the statutes is created to read:

AB246,6,15 87.30 (1m) (a) (intro.) All of the following apply:

AB246,5 Section 5. 87.30 (1m) (a) of the statutes is renumbered 87.30 (1m) (a) 1.

AB246,6 Section 6. 87.30 (1m) (am) of the statutes is created to read:

AB246,6,18 87.30 (1m) (am) All of the following apply:

AB246,6,20 1. The farm drainage ditch is subject to the jurisdiction of a drainage district under ch. 88.

AB246,6,22 2. The disposal of material in a floodplain is within the drainage district corridor under s. 88.74.

AB246,6,24 3. The lands adjacent to the corridor are maintained in nonstructural agricultural use.

AB246,7 Section 7. 87.30 (1m) (b) and (c) of the statutes are renumbered 87.30 (1m) (a) 2. and 3.

AB246,8 Section 8. 88.13 of the statutes is amended to read:

AB246,7,13 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.

AB246,9 Section 9. 88.17 (2h) (c) of the statutes is created to read:

AB246,7,19 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.

AB246,10 Section 10. 88.17 (2h) (d) of the statutes is created to read:

AB246,7,23 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.

AB246,11 Section 11. 88.17 (2r) of the statutes is created to read:

AB246,8,5 88.17 (2r) (a) If the board has jurisdiction of a drainage district that is located entirely or partially within the corporate limits of a city or village and a city or village the corporate limits of which contains any portion of a drainage district that is under the jurisdiction of the board notifies the court that the city or village will recommend a drainage board member, all of the following apply:

AB246,8,8 1. Notwithstanding subs. (1) and (2), the board shall consist of 5 persons. If the number of members of a board is increased under this paragraph, the board shall provide by rule for staggered terms, with all members serving terms of 5 years.

AB246,8,17 2. a. Notwithstanding sub. (1) and (2h), the court shall appoint one drainage board member from the list of persons recommended under this subd. 2. a. by cities and villages the corporate limits of which contains any portion of a drainage district that is under the jurisdiction of the board. Each city and village may recommend a member and, if the city or village recommends a member, shall recommend the chief executive of the city or village or the designee of the chief executive. In appointing a member under this subd. 2. a., the court shall attempt to assure that the member has experience in farming, familiarity with drainage, or familiarity with drainage engineering.

AB246,8,20 b. If drainage districts under the jurisdiction of the board are located entirely or partially within the corporate limits of more than one city or village, the appointment under subd. 2. a. shall rotate among the cities and villages.

AB246,8,23 c. Notwithstanding subs. (7) and (8), a member appointed under this paragraph may not be reimbursed for expenses incurred in the performance of the member's duties and may not receive a per diem.

AB246,9,3 (b) If the position under par. (a) 2. becomes vacant and no city or village the corporate limits of which contains any portion of a drainage district that is under the jurisdiction of the board recommends a drainage board member under par. (a) 2., the board may, by rule, reduce the number of members to 3, but only if the size of the board is reduced as vacancies occur on the board.

AB246,12 Section 12. 88.212 (4) of the statutes is created to read:

AB246,9,8 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.

AB246,13 Section 13. 88.24 (intro.) of the statutes is amended to read:

AB246,9,22 88.24 Board to file annual report. (intro.) On or before December 1 of each year the board shall file with the department of agriculture, trade and consumer protection; the town board or town zoning committee; the city council, plan commission, or plan committee; and the county zoning administrator, in which district territory is located, a separate report, for the preceding fiscal year ending August 31, on each drainage district under the board's jurisdiction. Unless the board selects a different fiscal year and notifies the department of the selection, the board's fiscal year begins on September 1 and ends on the following August 31. All local units of government that receive the report shall consider it before making any zoning or planning decisions that may affect a drainage district that is located within its boundaries. The reports shall constitute part of the records of the districts reported on, shall be verified by the oath of one or more of the board members, and shall contain:

AB246,14 Section 14. 88.31 (7r) of the statutes is created to read:

AB246,9,25 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.

AB246,15 Section 15. 88.62 (3) (a) of the statutes is amended to read:

AB246,10,9 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).

AB246,16 Section 16. 88.63 (2) of the statutes is amended to read:

AB246,11,2 88.63 (2) The board shall may establish and maintain a fund for the payment of costs of maintenance and repair. Whenever the amount of the fund falls below an amount equivalent to 5 percent of the confirmed benefits currently in effect in the district, the board shall levy an additional assessment under s. 88.23 for maintenance and repair. Assessments for costs of maintenance and repair shall be apportioned on the basis of the confirmed benefits then in effect in the district but may be made notwithstanding the fact that assessments of benefits in the district may have been exhausted by previous assessments for other costs. Assessments for costs of maintenance and repair, including costs incurred and per diems earned by board members under sub. (1m), are not limited by the extent of unexhausted assessments of benefits in the district and shall not be counted in determining whether there are unexhausted assessments of benefits against which assessments for costs other than those authorized by this section may be made 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.

AB246,17 Section 17. 88.74 of the statutes is created to read:

AB246,11,5 88.74 District corridors. (1) (a) Except as provided in par. (b), the board shall establish all of the following as district corridors:

AB246,11,7 1. A corridor which extends 20 feet from the top of the ditch bank on each side of a district ditch.

AB246,11,9 2. A corridor extending 20 feet from the centerline on each side of any other district drain or facility.

AB246,11,12 (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).

AB246,11,14 (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.

AB246,11,16 (3) The board shall maintain a corridor established under sub. (1) to accomplish all of the following purposes:

AB246,11,18 (a) To provide the board with effective access to the drain or facility, including access for vehicles or equipment.

AB246,11,19 (b) To protect water quality in the drain or facility.

AB246,11,22 (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.

AB246,11,24 (b) Before doing any of the following in a corridor, the board shall notify the landowner of the pending action:

AB246,12,2 1. Cutting a tree that is more than 6 inches in diameter measured at breast height.

AB246,12,3 2. Excavating or depositing materials in the corridor.

AB246,12,6 (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.

AB246,12,8 (5) (a) No person may do any of the following in a corridor established under sub. (1) without written permission from the board:

AB246,12,9 1. Engage in row cropping in the corridor.

AB246,12,11 2. Place any obstruction in the corridor that interferes with the board's ability to accomplish a purpose under sub. (3).

AB246,12,13 (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).

AB246,12,17 (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.

AB246,12,20 (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.

AB246,18 Section 18. 88.785 of the statutes is created to read:

AB246,13,2 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 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.

AB246,13,5 (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.

AB246,19 Section 19. 88.817 of the statutes is created to read:

AB246,13,8 88.817 Leola drainage district. (1) Notwithstanding s. 88.815, the Leola drainage district located in Adams, Portage, and Waushara counties is reinstated.

AB246,13,14 (2) The drainage board with jurisdiction of the Leola drainage district may not levy any assessment. This subsection does not apply if the owners of land representing, as calculated on the effective date of this subsection .... [LRB inserts date], 67 percent or more of the confirmed benefits in the district, excluding benefits received by land owned by this state, file with the court having jurisdiction on the matter a petition for the reinstatement of assessment authority of the district.

AB246,20 Section 20. 88.83 (title) of the statutes is amended to read:

AB246,13,16 88.83 (title) Transfer of district to city or village municipal jurisdiction.

AB246,21 Section 21. 88.83 (1) of the statutes is renumbered 88.83 (1g) and amended to read:

AB246,13,24 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.

AB246,22 Section 22. 88.83 (1c) of the statutes is created to read:

AB246,14,1 88.83 (1c) In this section, “municipality" means a city, village, or town.