Chapter 87

87.14   Operation and maintenance.

87.15   Repairs, replacements and extensions; procedure.

87.16   Court proceedings given preference.

87.17   Trespass, penalty.

87.18   Lease, sale and lease with option to purchase the project.

87.30   Floodplain zoning.

87.304   Regulation of historic property in floodplains.

87.305   Use of certain facilities on St. Feriole island.

87.01 87.01 Definitions. In this chapter:

87.01(1) (1) “Department” means the department of natural resources.

87.01(2) (2) “Drainage area” means any parcel or parcels of land within the area whose drainage causes or contributes to flood conditions upon or in the vicinity of a designated stream or body of water.

87.01(3) (3) “Equalized assessed value” means:

87.01(3)(a) (a) As applied to any town, village or city, the value of the real property therein as determined by the department of revenue under s. 70.57;

87.01(3)(b) (b) As applied to any tract of land, such proportion of the assessed value thereof, as determined by the local assessor, as the equalized assessed value of all the real estate in the town, village or city in which such tract is located bears to the aggregate assessed value of the real estate in such town, village or city, as determined by its assessor;

87.01(3)(c) (c) As applied to a parcel of land, such proportion of the equalized assessed value of the tract of which such parcel is a part, as the department shall determine to correctly represent the relative value of such parcel as compared with the remainder of the tract.

87.01(4) (4) “Owner” means any person, partnership, association or corporation having the fee title or any lesser estate in lands, except estates at will and by sufferance.

87.01(5) (5) “Parcel of land” means that portion of a tract of land which is benefited by the abatement or diminution of flood conditions.

87.01(6) (6) “Public corporation” means any county, town, village, city, school district, board of park commissioners and any other public body empowered to hold property, borrow money or levy taxes.

87.01(7) (7) “Public service corporation” means any corporation specified in s. 201.01.

87.01(8) (8) “Tract of land” means all of the land separately assessed as a unit for the purpose of general taxation pursuant to s. 70.23.

87.01 History History: 1981 c. 20; 1983 a. 189; 1985 a. 225; 1987 a. 282; 1993 a. 490; 1997 a. 140; 1999 a. 150.

87.02 87.02 Powers of department. To accomplish the purposes of ss. 87.01 to 87.17, the department of natural resources is hereby authorized and empowered:

87.02(1) (1) To order the straightening, widening, altering, deepening, changing or the removing of obstructions from the course of any river, watercourse, pond, lake, creek or natural stream, ditch, drain or sewer, and the concentration, diversion or division of the flow of water therein; provided, that in the case of navigable waters no such work shall substantially impair the navigability thereof.

87.02(2) (2) To order the construction and maintenance or the removal of ditches, canals, levees, dikes, dams, sluices, revetments, reservoirs, holding basins, floodways, pumping stations, sewers and siphons, and any other works reasonably adapted or required to accomplish the purposes of said ss. 87.01 to 87.17.

87.03 87.03 Petition for flood works. Any 25 owners of lands which have been recurrently flooded by the waters of any designated stream, lake or pond or any tributaries thereof, or any public corporation within whose boundaries are located any lands subject to such overflow, may file with the department a written petition setting forth:

87.03(1) (1) The necessity for the construction of such works of improvement as will abate or substantially diminish the overflow of such lands, together with a statement that the construction of such works is required by the public health, safety, convenience or welfare;

87.03(2) (2) A general description of the purpose of the contemplated improvement and of the territory proposed to be benefited by the construction thereof. Said description need not be given by metes and bounds nor by legal or political subdivisions but shall be sufficient if it designate in general terms the territory proposed to be benefited by the improvement;

87.03(3) (3) A prayer for appropriate action and relief.

87.04 87.04 Action on petition.

87.04(1) (1) Upon the filing of any petition as authorized by s. 87.03, the department shall give the project a name embodying the name of the principal river or body of water involved in the project, and shall fix a date and place of hearing upon the petition, the date being so fixed as to allow for the giving of the notice herein provided for. The department shall publish in each county in which any portion of the territory referred to in the petition is located, a class 3 notice, under ch. 985, stating the nature of the proceeding and the time and place of the proposed hearing, and shall also forward a copy of such notice to the county clerk of each such county. Each such county clerk shall thereupon mail a copy of the notice to the clerk of each town, village and city within that clerk’s county. The failure of any county clerk to comply with the foregoing requirements shall not, however, affect the jurisdiction of the department to proceed.

87.04(2) (2) If the petition alleges that the proposed project will be located wholly upon land owned by the petitioners, that the stream affected is nonnavigable, or if navigable in fact, is not navigable for any substantial commercial or major recreational purposes, that the project is required by public health, safety, convenience or welfare and that the petitioners desire to construct and operate the project as a cooperative enterprise, the department may hear the petition upon due notice to the petitioners and to the town clerk of each town in which the project is located. If the department finds that the allegations of the petition are true, it may authorize the petitioners to proceed with the construction and operation of the project subject to plans to be approved by the department and all other procedural requirements of this chapter may thereafter be omitted, provided that the petitioners shall be jointly and severally liable for any damage to the property of others resulting from said project.

87.04 History History: 1991 a. 316.

87.05 87.05 Scope of hearing. The hearing under s. 87.04 shall be confined to the question whether the improvement prayed for in the petition is required by the public health, safety, convenience or welfare. Any person interested may appear at such hearing in person or by attorney and be heard upon said question without the filing of any formal pleading. In considering and deciding this question the department may consider investigations and reports made by the engineering staff and by the U.S. government or an officer or agency thereof, provided such reports are made a part of the record of the hearing. If at the close of such hearing the department determines that the public health, safety, convenience or welfare require the abatement or substantial diminution of the flood conditions referred to in the petition, it shall make written findings to that effect and shall direct the hearing upon the petition to proceed; but if its finding is to the contrary, it shall enter an order dismissing the petition.

87.06 87.06 Court review of dismissal. An order dismissing the petition shall be subject to review in the manner provided in ch. 227. An order directing the hearing to proceed shall not be subject to review except upon review of the final order made pursuant to s. 87.07.

87.07 87.07 Preliminary order.

87.07(1) (1) Survey and report. If the department’s order, made pursuant to s. 87.05, shall direct the hearing to proceed, the department shall at the same time direct its engineering department to make a survey in the form of a preliminary investigation and to file a report:

87.07(1)(a) (a) Determining and showing upon a map the lands, whether contiguous or not, which will be benefited by the abatement or substantial diminution of the flood conditions referred to in the petition; defining by legal description each parcel of such lands, other than those owned by public corporations or public service corporations; stating the most recent equalized assessed value of each such parcel of land, and stating the amount of benefit estimated to be derived by each such parcel from the abatement or substantial diminution of such flood conditions;

87.07(1)(b) (b) Giving a general description of the real property of any public corporation and the real and personal property of any public service corporation which will be benefited by the abatement or substantial diminution of the flood conditions referred to in the petition; stating the fair value of each parcel of real estate and piece of personal property so described, and determining the amount of benefit estimated to be derived by each of such parcels of real estate and pieces of personal property from the abatement or substantial diminution of such flood conditions; for the purposes of ss. 87.01 to 87.17, streets and highways shall be deemed to be the property of the public corporation which is under legal duty to maintain them;

87.07(1)(c) (c) Defining by political subdivisions the drainage area, and stating the most recent equalized assessed value of the real estate in each of the political subdivisions constituting such area;

87.07(1)(d) (d) Recommending the means deemed to be the most practical, considering cost and efficiency, for so abating or diminishing the flood conditions referred to in the petition as to effect the public purpose found by the department in its order made pursuant to s. 87.05, and stating the estimated cost of the improvement necessary to put such means into effect.

87.07(2) (2) Notice of preliminary report, hearing. Upon the filing of such preliminary engineering report with the department, it shall forward a copy thereof to the county clerk of each county in whole or in part within the drainage area as set forth in said report, at least 30 days before the date fixed by the department for further hearing upon the petition. The department shall fix a date for such further hearing and shall publish a class 3 notice thereof, under ch. 985, in each county in whole or in part within the drainage area as set forth in the report, and shall mail a copy of the notice to each party who appeared at the preliminary hearing.

87.07(2m) (2m) Petition. At any time prior to the further hearing and final findings upon the several matters covered by said preliminary reports, owners who represent a majority of the lands owned by the original petitioners may file with the department a written petition requesting that no further proceeding be had. Upon receipt of such petition requesting no further proceeding and a determination by the department that same is signed by the required number of property owners, the department shall enter an order dismissing the original petition.

87.07(3) (3) Hearing on report, findings.

87.07(3)(a) (a) At the further hearing held pursuant to the notice under sub. (2), any person interested may appear in person or by attorney and be heard upon the matters covered by the preliminary engineering report, without the filing of any formal pleading on behalf of the person. The department shall make final findings upon the matters covered by the preliminary engineering report, including detailed plans and specifications for the work of constructing the improvement. In determining the estimated cost of the improvement the department shall determine and state separately:

87.07(3)(a)1. 1. The estimated cost of the lands and interest in lands necessary to be acquired for the improvement;

87.07(3)(a)2. 2. The estimated aggregate of the contract prices for the construction of the improvement;

87.07(3)(a)3. 3. The estimated expense to be incurred during the construction of the improvement for engineering, superintendence, clerical expense and other overhead expenses by the flood control board in charge of the construction; and

87.07(3)(a)4. 4. The estimated expense to be incurred by the flood control board for operation and maintenance of the improvement during the first 18 months after its completion.

87.07(3)(b) (b) The department shall also find, as to each of the landowners, public corporations and public service corporations owning property to be benefited by the proposed improvement, and as to each parcel of land so benefited, and as to each of the public corporations required by s. 87.10 to contribute toward the cost of each improvement:

87.07(3)(b)1. 1. The maximum amount collectible from the parcel of land, public corporation or public service corporation under the provisions of s. 87.09; and

87.07(3)(b)2. 2. The amount actually required to be collected from the public corporation, public service corporation or parcel of land to meet the estimated cost of the improvement, which amount shall be, as to each parcel of land, public corporation and public service corporation, a uniform percentage of the total amount found by the department to be collectible therefrom.

87.07(4) (4) Benefits and costs decisive. If the aggregate of the amounts collectible, as thus found by the department, exceeds the estimated cost of construction of the improvement, the department shall order that the work of constructing such improvement proceed. If such aggregate amount collectible is less than the estimated cost of such improvement, the department shall enter an order dismissing the petition, unless the difference between said aggregate amounts be deposited in cash with the secretary of administration within one year. Such deposit may be made by any person or any public or private corporation. Upon the making of such deposit, the department shall enter a further order that the work of constructing the improvement proceed.

87.07(5) (5) Court review. Any such order may be reviewed in the manner provided in ch. 227, except that if any finding as to the amount of benefit to any property shall be challenged upon such review the petitioner shall be entitled to a trial by jury upon demand.

87.07 History History: 1987 a. 403; 2003 a. 33.

87.075 87.075 Special procedure.

87.075(1) (1) Notwithstanding any other provision of this chapter, the department may, as provided in this section, at any time after directing the hearing upon the petition to proceed made under s. 87.05, issue an order stating that a flood control board shall be appointed as provided in s. 87.12, in which event such a board shall be forthwith appointed. If such an order is issued, the procedures stated in ss. 87.07, 87.08, 87.09, 87.10 and 87.11 and any other section predicated thereon may be dispensed with.

87.075(2) (2) An order may be issued under this section under the following circumstances:

87.075(2)(a) (a) That the proposed project will be financed in whole or in part by funds to be received from municipalities, other governmental agencies or others.

87.075(2)(b) (b) That the benefit to public health, safety, convenience and welfare which will result from the project is such as to justify the initial and subsequent cost of the project. In making this determination the department may consider and give effect to the nature and purpose for which funds have been or may be made available for the project.

87.075(2)(c) (c) That the public interest requires that a flood control board should be appointed and commence functioning as provided in this section without following the normal procedure otherwise prescribed under this chapter.

87.075(3) (3) In making its determination under this section, the department may consider and base its determination in whole or in part upon any plans or study made by any governmental agency, as well as upon any other material deemed by it to be relevant to such determination.

87.075(4) (4) When a flood control board is appointed under this section it shall:

87.075(4)(a) (a) Forthwith cause all necessary surveys and studies to be made and plans and specifications prepared for the project.

87.075(4)(b) (b) Submit plans and specifications to the department for approval.

87.075(4)(c) (c) Cause the project to be constructed under contract let by public bids in accordance with the plans and specifications as approved by the department. The flood control board may subsequently modify the plans and specifications as originally approved, subject to approval of the department.

87.075(4)(d) (d) Operate and maintain the completed project.

87.075(4)(e) (e) Annually on or before March 15, assess the cost of construction, maintenance and operation of the project against the municipalities involved in the proportion that the equalized assessed value of real property located in the floodplain of the portion of the waterway in each municipality involved, exclusive of public park lands, bears to the total of such equalized assessed value for all municipalities involved. Such assessment shall be based upon data furnished by local assessors who shall forward to the secretary of the flood control board all data requested, by certified mail, within 30 days from receipt of such request. In the event the local assessor shall fail to comply with such request within the time specified, the flood control board shall conduct whatever studies are necessary in its judgment to determine the equalized assessed value of affected lands within such municipality, and the cost of such studies shall be charged to such municipality. When the flood control board determines the amount each municipality is required to pay, it shall certify that amount to each respective municipality. It shall thereupon be the duty of each municipality to pay said amount to the flood control board not later than 60 days from receipt of such certificate. The municipality may raise the funds required in the manner provided in s. 87.076.

87.075(5) (5) The flood control board appointed under this section shall have all powers contained herein as well as other sections of this chapter. In the event of conflict between the provisions of this section and other sections of this chapter, the provisions of this section shall control.

87.076 87.076 Financing. Any flood control project other than a project described in s. 87.04 (2) may, in addition to any other method of financing mentioned in this chapter, be financed from funds received in whole or in part by the flood control board from any governmental agency or other person. To implement this section, every municipality may obtain and provide funds for a flood control project:

87.076(1) (1) By levying a special assessment as provided in s. 66.0703.

87.076(2) (2) By borrowing money and issuing bonds as provided in ch. 67.

87.076(3) (3) By grants or donations.

87.076(4) (4) By exercise of the general power of taxation.

87.076 History History: 1999 a. 150 s. 672.

87.08 87.08 Petition of board; modification of order, court review. Upon petition of the flood control board organized pursuant to s. 87.12 for the purpose of carrying out the final order of the department, the department may at any time, after public hearing, modify its final orders insofar as the same relate to the plans and specifications therein adopted by it for the construction of the improvement, but no such modification shall materially change the basic plan of the improvement. The hearing upon application for such modification shall be held upon notice to the clerk of each town, village and city containing property found by the department to be benefited by the improvement. Such order for modification may be reviewed in the same manner as the final order.

87.085 87.085 Federal cooperation. Any public corporation or flood control board acting under its powers and in conformity with state law may enter into an agreement with an agency of the federal government to cooperate in the construction, operation or maintenance of any federally authorized project contemplated under this chapter or to assume any potential liability appurtenant to such project and may do all things necessary to consummate the agreement. Such public corporation or flood control board may jointly or separately enter into such an agreement with an agency of the federal government carrying such terms and provisions concerning the division of costs and responsibilities as may be mutually agreed upon.

87.09 87.09 Assessment of benefits. The department shall determine the parcel or parcels of land benefited directly or indirectly and shall levy such assessment in proportion to the benefit accruing to such parcel or parcels of land.

87.095 87.095 Public park lands not benefited by improvement. For the purposes of this chapter it is determined that public park lands are not benefited either directly or indirectly by such improvement, and shall not be considered in the assessment of benefits made by the department or by the flood control board acting under the provisions of s. 87.075 or 87.076.

87.10 87.10 Collection of assessments; bonds.

87.10(1) (1) Upon the making of a final order directing the work to proceed, as provided in s. 87.07, the department shall forward a certified copy of its findings and the order based thereon to the clerk of each town, village and city in which any land or other property benefited by the improvement is located; to the clerk of each public corporation owning property found to be benefited thereby, and to the clerk of each town, village and city found to be located within the drainage area. It shall thereupon be the duty:

87.10(1)(a) (a) Of each town, village and city in which is located any benefited land owned otherwise than by a public corporation, or in which is located any benefited property of a public service corporation, to levy as a special assessment against the land or other property so benefited the amount which the department has found that such property should contribute to the cost of the improvement, and to collect the same in connection with the next ensuing collection of general taxes in said town, village or city. The governing body of such town, village or city may, in its discretion, make such special assessment payable in annual installments;

87.10(1)(b) (b) Of each public corporation owning property found by the department to be benefited, to raise the amount which the department shall have found that such property should contribute to the cost of the improvement;

87.10(1)(c) (c) Of each town, village or city containing lands or other property found to be benefited by the improvement, to raise the amount which the department shall have found such town, village or city should contribute to the cost of the improvement;

87.10(1)(d) (d) Of each town, village or city within the drainage area, to raise the amount which the department shall have found such town, village or city should contribute to the cost of the improvement.

87.10(2) (2) The amount required to be raised by any public corporation pursuant to sub. (1) (b), (c) and (d) of this section may be raised by the issuance of bonds or by the levy of general taxes, or may be paid out of any funds of such public corporation legally available for such purpose; provided, however, that no bonds shall be issued until provision has been made to pay the liability that will accrue thereunder. Every public corporation electing to raise such sums wholly or in part by general taxation may lawfully do so, even though the tax rate of such public corporation for the year of such levy may thus be increased beyond the legal limit otherwise applicable. The moneys to be provided by any public corporation pursuant to this section, except the deferred installments of special assessments, shall be on hand and available by March 15 following the department’s final order, unless the time between the certification of such order and March 15 is insufficient for the raising of such moneys. All such moneys shall be held by the treasurer of such public corporation in a separate fund until paid over to the flood control board created pursuant to s. 87.12.

87.11 87.11 When benefits exceed cost; when costs will exceed benefits; temporary borrowing; maintenance fund.

87.11(1) (1) If, after all contracts for construction of the improvement have been let, the aggregate of the contract prices, as certified by the flood control board created pursuant to s. 87.12, added to the department’s estimated cost of acquiring the necessary lands and of overhead expense and of the first 18 months’ operation and maintenance, exceeds the amount estimated by the department as the total cost of the improvement, but is less than the total amount found by the department to be collectible under s. 87.09, the work of constructing the improvement shall nevertheless proceed and the several public corporations shall provide, not later than the time fixed for the next ensuing general tax collection therein, the amounts required to make up the deficiency, in the same proportions as the original amounts were provided by such public corporations.

87.11(2) (2) But should the total cost, as ascertained and certified by the flood control board after the letting of the contracts, in the manner hereinabove set forth, exceed the total amount found by the department to be collectible under s. 87.09, all contracts for the construction of the work shall be null and void. At the expiration of one year after such certification, any moneys held by the secretary of administration on account of the project shall be refunded to the persons by whom they were paid to the secretary of administration; and funds in the hands of the flood control board shall be refunded to the public corporation by which they were paid to such board; any funds held by any town, village, or city, having been collected by special assessments against property benefited, shall be refunded to the owners of such property; any funds raised by any public corporation by the issuance of bonds on account of such proposed improvements shall constitute a fund for the retirement or payment of such bonds; and any fund held by any public corporation, having been raised otherwise than by special assessments or bond issues, shall be available for the general purposes of such public corporation. Provided, however, that if within one year after the last mentioned certification of the flood control board there shall be deposited with the treasurer of said board a sum equal to the difference between the aggregate cost of constructing the improvement as estimated by the department and the aggregate cost thereof as determined and certified by the flood control board after the letting of the contracts, said board shall proceed to relet the contracts for the construction of the improvement and to complete the same unless the aggregate of such new contract prices, together with the department’s estimate of the cost of acquiring lands and of overhead expenses and of the first 18 months’ operation and maintenance, shall again exceed the amount found by the department to be collectible under s. 87.09. The deposit herein referred to may be made by any person or any public or private corporation.