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 1An Act to repeal 88.83 (1m) and 88.83 (1r); to renumber 87.30 (1m) (a) and
287.30 (1m) (b) and (c); to renumber and amend 88.83 (1); to amend 87.30
3(1m) (intro.), 88.13, 88.24 (intro.), 88.62 (3) (a), 88.63 (2), 88.83 (title), 88.83 (3),
488.83 (4), 88.83 (5), 281.36 (3b) (b), 281.36 (3m) (a), 281.36 (6) (a) (intro.) and
5281.36 (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),
788.31 (7r), 88.74, 88.785, 88.817, 88.83 (1c), 88.83 (2m) and 281.36 (4m) of the
8statutes; 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
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 1Section 1. 30.20 (1g) (d) of the statutes is created to read:
AB246,4,42 30.20 (1g) (d) The removal of material by a drainage district from the bed of
3a ditch operated by the drainage district is exempt from the individual and general
4permit requirements under this section if all of the following apply:
AB246,4,55 1. The material is removed for the purpose of maintaining the ditch.
AB246,4,96 2. The material is not removed from an area that is listed in a database
7maintained by the department identifying contaminated properties and other
8activities related to the investigation and cleanup of contaminated soil or
9groundwater in this state.
AB246,4,1010 3. If the removed material is spread on land, all of the following apply:
AB246,4,1111 a. The material is graded and smoothed to blend into cultivated lands.
AB246,5,1
1b. The surface slope of the material does not exceed a slope of 8 to 1.
AB246,5,22 c. The material is not more than 2 feet deep at the top of the bank of the ditch.
AB246,5,63 4. If the removed material is placed in a district corridor established under s.
488.74, no portion of a pile of the removed material is closer than 12 feet from the top
5of the bank of the ditch, is piled at any angle other than a stable angle of repose for
6that material, nor has a slope exceeding a slope of 2 to 1.
AB246,5,97 5. The drainage district, in maintaining the drainage ditch, does all of the
8following in order to prevent the spread of invasive species or the spread of viruses
9from one navigable water to another:
AB246,5,1210 a. Removes plants, animals, and mud and other debris from all equipment it
11uses to maintain the drainage ditch before the equipment is placed in any other
12navigable water.
AB246,5,1613 b. Washes all equipment that it uses to maintain the drainage ditch with high
14pressure water of not less than 2,000 pounds per square inch before it is placed in
15any other navigable water or allows the equipment to dry for not less than 5 days
16before it is placed in any other navigable water.
AB246,5,1817 6. The material is not discharged into a wetland that is identified by the
18department under s. 281.36 (3g) (d) 1. to 7.
AB246,5,2319 7. Except as provided in this subdivision, the removal activity does not occur
20between March 15 and the immediately following June 1. A department fish
21biologist assigned to the area in which the removal activity is located may waive the
22requirement that the limitation in this subdivision apply to an exemption under this
23paragraph.
AB246,6,3
18. If the drainage ditch is classified by the department as a trout stream or
2tributary of a trout stream, the drainage district coordinates the time of its removal
3activities with department fisheries staff.
AB246,2 4Section 2. 70.32 (5) of the statutes is created to read:
AB246,6,85 70.32 (5) Beginning with the assessments as of January 1, 2017, the assessor
6shall assess the land within a district corridor described under s. 88.74 in the same
7class under sub. (2) (a) as the land adjoining the corridor, if the adjoining land and
8the land within the corridor are owned by the same person.
AB246,3 9Section 3. 87.30 (1m) (intro.) of the statutes is amended to read:
AB246,6,1310 87.30 (1m) Jurisdiction over drainage ditches limited. (intro.)
11Notwithstanding any other provision of law or administrative rule promulgated
12thereunder, a floodplain zoning ordinance required under sub. (1) does not apply to
13lands adjacent to farm drainage ditches if either par. (a) or (am) applies:
AB246,4 14Section 4. 87.30 (1m) (a) (intro.) of the statutes is created to read:
AB246,6,1515 87.30 (1m) (a) (intro.) All of the following apply:
AB246,5 16Section 5. 87.30 (1m) (a) of the statutes is renumbered 87.30 (1m) (a) 1.
AB246,6 17Section 6. 87.30 (1m) (am) of the statutes is created to read:
AB246,6,1818 87.30 (1m) (am) All of the following apply:
AB246,6,2019 1. The farm drainage ditch is subject to the jurisdiction of a drainage district
20under ch. 88.
AB246,6,2221 2. The disposal of material in a floodplain is within the drainage district
22corridor under s. 88.74.
AB246,6,2423 3. The lands adjacent to the corridor are maintained in nonstructural
24agricultural use.
AB246,7
1Section 7. 87.30 (1m) (b) and (c) of the statutes are renumbered 87.30 (1m) (a)
22. and 3.
AB246,8 3Section 8. 88.13 of the statutes is amended to read:
AB246,7,13 488.13 Right to enter lands of drainage district. Whenever necessary for
5any purpose connected with the organization of a district or the construction,
6maintenance or repair of drains and other works, members of the board,
7representatives of the department of agriculture, trade and consumer protection,
8and persons intending to bid on or to whom contracts have been let for the
9construction of the works within a district or on former district lands transferred
10under s. 88.83
and their respective agents and employees may go upon any lands
11proposed for inclusion or included within a district or on adjoining lands or on former
12district lands transferred under s. 88.83
, and are not guilty of trespass therefor but
13are liable for unnecessary damage caused to crops or structures.
AB246,9 14Section 9. 88.17 (2h) (c) of the statutes is created to read:
AB246,7,1915 88.17 (2h) (c) Local or statewide agriculture, engineering, local government,
16or real estate organizations, including the Wisconsin Potato and Vegetable Growers
17Association, the Wisconsin State Cranberry Growers Association, the Wisconsin
18Farm Bureau Federation, the Wisconsin Farmers Union, the Dairy Business
19Association, and the Wisconsin Dairy Products Association.
AB246,10 20Section 10. 88.17 (2h) (d) of the statutes is created to read:
AB246,7,2321 88.17 (2h) (d) The department of agriculture, trade and consumer protection,
22which may recommend persons who have engineering experience related to water
23resources and agriculture.
AB246,11 24Section 11. 88.17 (2r) of the statutes is created to read:
AB246,8,5
188.17 (2r) (a) If the board has jurisdiction of a drainage district that is located
2entirely or partially within the corporate limits of a city or village and a city or village
3the corporate limits of which contains any portion of a drainage district that is under
4the jurisdiction of the board notifies the court that the city or village will recommend
5a drainage board member, all of the following apply:
AB246,8,86 1. Notwithstanding subs. (1) and (2), the board shall consist of 5 persons. If the
7number of members of a board is increased under this paragraph, the board shall
8provide by rule for staggered terms, with all members serving terms of 5 years.
AB246,8,179 2. a. Notwithstanding sub. (1) and (2h), the court shall appoint one drainage
10board member from the list of persons recommended under this subd. 2. a. by cities
11and villages the corporate limits of which contains any portion of a drainage district
12that is under the jurisdiction of the board. Each city and village may recommend a
13member and, if the city or village recommends a member, shall recommend the chief
14executive of the city or village or the designee of the chief executive. In appointing
15a member under this subd. 2. a., the court shall attempt to assure that the member
16has experience in farming, familiarity with drainage, or familiarity with drainage
17engineering.
AB246,8,2018 b. If drainage districts under the jurisdiction of the board are located entirely
19or partially within the corporate limits of more than one city or village, the
20appointment under subd. 2. a. shall rotate among the cities and villages.
AB246,8,2321 c. Notwithstanding subs. (7) and (8), a member appointed under this paragraph
22may not be reimbursed for expenses incurred in the performance of the member's
23duties and may not receive a per diem.
AB246,9,324 (b) If the position under par. (a) 2. becomes vacant and no city or village the
25corporate limits of which contains any portion of a drainage district that is under the

1jurisdiction of the board recommends a drainage board member under par. (a) 2., the
2board may, by rule, reduce the number of members to 3, but only if the size of the
3board is reduced as vacancies occur on the board.
AB246,12 4Section 12. 88.212 (4) of the statutes is created to read:
AB246,9,85 88.212 (4) If any portion of a drainage district that is a subject matter of a
6drainage board meeting is located in a city, village, or town, notify the city, village,
7or town of the date, time, and subject matter of the meeting. A notification under this
8subsection may be in an electronic format.
AB246,13 9Section 13. 88.24 (intro.) of the statutes is amended to read:
AB246,9,22 1088.24 Board to file annual report. (intro.) On or before December 1 of each
11year the board shall file with the department of agriculture, trade and consumer
12protection; the town board or town zoning committee; the city council, plan
13commission, or plan committee; and the county zoning administrator, in which
14district territory is located, a separate report, for the preceding fiscal year ending
15August 31
, on each drainage district under the board's jurisdiction. Unless the board
16selects a different fiscal year and notifies the department of the selection, the board's
17fiscal year begins on September 1 and ends on the following August 31.
All local units
18of government that receive the report shall consider it before making any zoning or
19planning decisions that may affect a drainage district that is located within its
20boundaries. The reports shall constitute part of the records of the districts reported
21on, shall be verified by the oath of one or more of the board members, and shall
22contain:
AB246,14 23Section 14. 88.31 (7r) of the statutes is created to read:
AB246,9,2524 88.31 (7r) A drainage district that is exempt from the individual and general
25permit requirements under s. 30.20 as specified under s. 30.20 (1g) (d) is exempt from

1the permit requirements and procedures under subs. (1) to (7) with respect to that
2removal.
AB246,15 3Section 15. 88.62 (3) (a) of the statutes is amended to read:
AB246,10,94 88.62 (3) (a) If Except for a removal of material that is exempt from the
5individual and general permit requirements under s. 30.20 as specified under s.
630.20 (1g) (d) and except as provided under par. (b), if
drainage work is undertaken
7in navigable waters, the drainage board shall obtain a permit under s. 30.20 or 88.31
8or ch. 31, as directed by the department of natural resources, except as provided in
9par. (b)
.
AB246,16 10Section 16. 88.63 (2) of the statutes is amended to read:
AB246,11,211 88.63 (2) The board shall may establish and maintain a fund for the payment
12of costs of maintenance and repair. Whenever the amount of the fund falls below an
13amount equivalent to 5 percent of the confirmed benefits currently in effect in the
14district, the board shall levy an additional assessment under s. 88.23 for
15maintenance and repair. Assessments for costs of maintenance and repair shall be
16apportioned on the basis of the confirmed benefits then in effect in the district but
17may be made notwithstanding the fact that assessments of benefits in the district
18may have been exhausted by previous assessments for other costs. Assessments for
19costs of maintenance and repair, including costs incurred and per diems earned by
20board members under sub. (1m), are not limited by the extent of unexhausted
21assessments of benefits in the district and shall not be counted in determining
22whether there are unexhausted assessments of benefits against which assessments
23for costs other than those authorized by this section may be made
for the payment
24of the costs of normal operations and maintenance and repair and for emergency

1expenses. Moneys in a fund under this subsection may not exceed amounts
2reasonably necessary for the purposes under this subsection
.
AB246,17 3Section 17. 88.74 of the statutes is created to read:
AB246,11,5 488.74 District corridors. (1) (a) Except as provided in par. (b), the board shall
5establish all of the following as district corridors:
AB246,11,76 1. A corridor which extends 20 feet from the top of the ditch bank on each side
7of a district ditch.
AB246,11,98 2. A corridor extending 20 feet from the centerline on each side of any other
9district drain or facility.
AB246,11,1210 (b) Upon notice to affected landowners, the board may establish and maintain
11a wider corridor if a wider corridor is necessary to meet any of the purposes specified
12under sub. (3).
AB246,11,14 13(2) The board shall provide notice of any corridor established under sub. (1) to
14the county and the city, village, or town in which the corridor is located.
AB246,11,16 15(3) The board shall maintain a corridor established under sub. (1) to
16accomplish all of the following purposes:
AB246,11,1817 (a) To provide the board with effective access to the drain or facility, including
18access for vehicles or equipment.
AB246,11,1919 (b) To protect water quality in the drain or facility.
AB246,11,22 20(4) (a) Except as provided in par. (b), the board may, without prior notice to the
21landowner, enter a corridor established under sub. (1) to inspect, survey, maintain,
22repair, restore, or improve a drain, facility, or corridor.
AB246,11,2423 (b) Before doing any of the following in a corridor, the board shall notify the
24landowner of the pending action:
AB246,12,2
11. Cutting a tree that is more than 6 inches in diameter measured at breast
2height.
AB246,12,33 2. Excavating or depositing materials in the corridor.
AB246,12,64 (c) Notice under par. (b) may be given at any time before performance of the
5work and may be given in person, by telephone, by mail, or, if the landowner is not
6available, by posting notice at a conspicuous location at an entrance to the land.
AB246,12,8 7(5) (a) No person may do any of the following in a corridor established under
8sub. (1) without written permission from the board:
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