AB246: Bill Text

LRB-0475/1

EVM&EHS:kjf&amn

2017 - 2018 LEGISLATURE

2017 Assembly BILL 246

April 14, 2017 - Introduced by Representatives Sanfelippo, Vos, Ballweg, E. Brooks, R. Brooks, Kuglitsch, Kulp, Loudenbeck, Murphy, Novak, Ripp, Skowronski, Weatherston and Wichgers, cosponsored by Senators Wanggaard and Craig. Referred to Committee on Agriculture.

AB246,1,9 An Act to repeal 88.83 (1m) and 88.83 (1r); to renumber 87.30 (1m) (a) and 87.30 (1m) (b) and (c); to renumber and amend 88.83 (1); to amend 87.30 (1m) (intro.), 88.13, 88.24 (intro.), 88.62 (3) (a), 88.63 (2), 88.83 (title), 88.83 (3), 88.83 (4), 88.83 (5), 281.36 (3b) (b), 281.36 (3m) (a), 281.36 (6) (a) (intro.) and 281.36 (9) (a) (intro.); and to create 30.20 (1g) (d), 70.32 (5), 87.30 (1m) (a) (intro.), 87.30 (1m) (am), 88.17 (2h) (c), 88.17 (2h) (d), 88.17 (2r), 88.212 (4), 88.31 (7r), 88.74, 88.785, 88.817, 88.83 (1c), 88.83 (2m) and 281.36 (4m) 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 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 is located.

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 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.