Chapter 88

88.17(2) (2) A drainage board may by rule, after the original board is appointed, increase the number of members to 5. In the rule increasing the number of members, the board shall provide for staggered terms, with all members serving terms of 5 years. After increasing the number of board members, 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.

88.17(2d) (2d) The board shall notify the court if any position on the board becomes vacant and the court shall appoint a successor. The board shall notify the court if the size of the board is increased under sub. (2) and the court shall appoint the additional board members. If a position on the board remains vacant for more than 6 months, either the state drainage engineer or any landowner in a drainage district subject to the jurisdiction of the board may petition the court to appoint a successor.

88.17(2h) (2h) The court shall appoint drainage board members from among persons recommended by any of the following:

88.17(2h)(a) (a) The committee on agriculture and extension education created under s. 59.56 (3) (b), which shall recommend at least 3 persons for each position to be filled.

88.17(2h)(b) (b) At least 3 landowners owning property in a drainage district that is subject to the jurisdiction of the drainage board.

88.17(2h)(c) (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.

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

88.17(2p) (2p) In appointing members, the court shall attempt to assure that at least one of the members serving on the drainage board at any time is an experienced farmer who is familiar with drainage and that another of the members is familiar to some extent with drainage engineering.

88.17(2r) (2r) 

88.17(2r)(a) (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:

88.17(2r)(a)1. 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.

88.17(2r)(a)2. 2.

88.17(2r)(a)2.a. a. Notwithstanding subs. (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.

88.17(2r)(a)2.b. 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.

88.17(2r)(a)2.c. 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.

88.17(2r)(b) (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.

88.17(2t) (2t) A drainage board member shall serve until a successor is appointed and qualified.

88.17(3) (3) Each member of the board shall take and file the official oath.

88.17(4) (4) Ownership of or interest in lands sought to be drained does not disqualify a person from acting as a member of the drainage board, but any board member may request the court to, and the court may in its discretion, appoint a suitable person to act in a member’s place when the board is considering matters pertaining to the particular drainage district in which the member is interested.

88.17(5) (5) When all its members have been duly sworn and qualified, the drainage board is a permanent body corporate and is subject to all rules of law applicable to public corporations.

88.17(6) (6) The board shall organize by election one of its members president and another of its members secretary. A majority of the board constitutes a quorum to do business. In the absence of a quorum, any member present may adjourn any meeting and make announcement thereof.

88.17(7) (7) Each board member shall be reimbursed for actual and reasonable expenses incurred in the performance of the member’s duties and, in addition, shall receive as compensation for actual and necessary services a per diem in an amount determined by the drainage board, not to exceed $40. In addition, the county board may reimburse drainage board members for actual and reasonable expenses incurred in performance of duties on behalf of the county.

88.17(8) (8) Each board member shall keep an accurate record of services rendered and expenses incurred by the member, together with the date thereof and the district for which services were rendered or in connection with which expenses were incurred. Board members shall file their bills for compensation and expenses with the county treasurer. Each bill shall indicate the district to which specific items are to be charged or the proportion of the bill to be paid by specified districts. The county treasurer, as treasurer of drainage districts, shall pay the bill if funds are available for that purpose and shall charge the accounts of the respective drainage districts liable for the bill in accordance with the order allowing the bill.

88.17(9) (9) The court may by order abolish the drainage board if there no longer are any drainage districts in the county.

88.17 History History: 1977 c. 449; 1991 a. 316; 1993 a. 456; 1995 a. 201; 2017 a. 115.

88.17 Note NOTE: 1993 Wis. Act 456, which substantially affected this section, contains extensive explanatory notes.

88.172 88.172 Limited liability of drainage board members.

88.172(1) (1) Except as provided in subs. (2) and (3), a drainage board member is not liable to any other person for damages, settlements, fees, fines, penalties or other monetary liabilities arising from a breach of, or failure to perform, any duty resulting solely from his or her status as a drainage board member, unless the person asserting liability proves that the breach or failure to perform constitutes any of the following:

88.172(1)(a) (a) A willful failure to deal fairly with any person in connection with a matter in which the drainage board member has a material conflict of interest.

88.172(1)(b) (b) A violation of criminal law, unless the drainage board member had reasonable cause to believe that his or her conduct was lawful or no reasonable cause to believe that his or her conduct was unlawful.

88.172(1)(c) (c) A transaction from which the drainage board member derived an improper personal profit.

88.172(1)(d) (d) Willful misconduct.

88.172(2) (2) Except as provided in sub. (3), this section does not apply to any of the following:

88.172(2)(a) (a) A civil or criminal proceeding brought by or on behalf of any governmental unit, authority or agency.

88.172(2)(b) (b) A proceeding brought by any person for a violation of state or federal law if the proceeding is brought under an express private right of action created by state or federal statute.

88.172(3) (3) Subsection (2) does not apply to a proceeding brought by a governmental unit, authority or agency in its capacity as a private party or contractor.

88.172 History History: 1993 a. 456.

88.172 Note NOTE: 1993 Wis. Act 456, which created this section, contains extensive explanatory notes.

88.18 88.18 County treasurer to serve as treasurer of drainage districts.

88.18(1) (1) The county treasurer shall serve as treasurer of all drainage districts under the jurisdiction of the drainage board. All moneys collected for or payable to any such drainage district shall be turned over to or paid to the county treasurer and shall be paid out by the treasurer only upon proper warrants of the drainage board. The county treasurer may retain for the benefit of the county a portion of the interest received on drainage district funds held by the county treasurer, not to exceed the cost to the county treasurer of providing services to the drainage board under this chapter, the cost to the zoning administrator of maintaining drainage board records under s. 88.19 and the cost to the zoning administrator of providing copies of drainage board records to the drainage board.

88.18(2) (2) The county treasurer shall keep a separate account for each drainage district in which the treasurer shall charge such district with all amounts paid out on its behalf pursuant to sub. (1) and shall credit the district with:

88.18(2)(a) (a) All sums received in payment of drainage assessments of that district, including penalties and interest on the sums.

88.18(2)(e) (e) All other sums received on account of the drainage district other than interest received on drainage district funds held by the county treasurer.

88.18(3) (3) The drainage board may appoint a treasurer who shall act as the deputy of the county treasurer. The drainage board may assign any part or all of the county treasurer’s duties under this chapter to the drainage board treasurer. The drainage board treasurer shall be reimbursed for actual and reasonable expenses incurred in the performance of the treasurer’s duties in the same manner as provided for drainage board member expenses under s. 88.17 (8). The drainage board shall require a bond from the drainage board treasurer in an amount, set by the board, that is sufficient to exceed the greatest amount of funds expected to be held in his or her custody, and with the sureties that the drainage board requires. The bond shall be conditioned in substantially the same form as the ordinary bond required from the county treasurer, with the necessary changes.

88.18 History History: 1987 a. 378; 1991 a. 316; 1993 a. 456.

88.19 88.19 Board to keep records.

88.19(1) (1) It is the duty of the secretary of the board to keep records of all drainage proceedings. The secretary shall also maintain a minute book in which the secretary shall enter the minutes of the board meetings. The secretary shall be compensated for such services under s. 88.17 (7) and (8).

88.19(2) (2) The secretary of the board shall keep a complete record of the assessed lands in each district under the board’s jurisdiction. Such records shall be so arranged that they will readily show, for each parcel of land assessed, the latest confirmed assessment of benefits and the total assessments for costs which have been made against such lands, with adequate space provided for noting all payments of assessments for costs or installments thereof. The secretary of the board shall periodically check with the county treasurer to determine what drainage assessments or installments thereof have been paid and shall note such payments in the records required to be kept pursuant to this subsection.

88.19(3) (3) The secretary of the board is legal custodian of all drainage records and the secretary shall comply with subch. II of ch. 19. Upon request for any of the drainage records by the county treasurer, the secretary of the board shall furnish the county treasurer with a copy of the records specified in sub. (2).

88.19(4) (4) 

88.19(4)(a) (a) Subject to pars. (b) and (d), and subject to criteria and standards under rules that the department of agriculture, trade and consumer protection shall promulgate, all of the following shall occur:

88.19(4)(a)1. 1. The drainage board secretary shall distribute drainage board records to the state drainage engineer and to the county zoning administrator.

88.19(4)(a)2. 2. The drainage board and the county zoning administrator shall retain certain records of the drainage board.

88.19(4)(b) (b) The secretary of the drainage board and the county zoning administrator shall maintain in perpetuity any records consisting of an order creating or altering the boundaries of a district, maps or descriptions of the boundaries of a district, profiles and cross sections of any drains and an order levying original or supplemental assessments for costs.

88.19(4)(c) (c) The drainage board and the county administrator may destroy obsolete drainage board records.

88.19(4)(d) (d) Before any records may be destroyed under this subsection, the secretary of the drainage board and the county zoning administrator shall give at least 60 days’ prior written notice of the proposed destruction to the state historical society, which may preserve records that it determines to be of historical interest, and shall give at least 60 days’ prior written notice to the state drainage engineer, who may preserve records determined to be of interest to the department of agriculture, trade and consumer protection.

88.19(5) (5) The state drainage engineer shall examine the records in the possession of all drainage board secretaries and drainage districts and the records received from clerks of court under 1993 Wisconsin Act 456, section 118, and may examine any other records held by any person relating to drainage in this state. The state drainage engineer shall determine the records that are required to be preserved under sub. (4) and make copies of the records. The state drainage engineer shall retain a copy of the records and deliver a copy to the county zoning administrator.

88.19(6) (6) The secretary of the drainage board, under sub. (4), shall provide a copy of drainage board records created after May 13, 1994, to the state drainage engineer and the county zoning administrator.

88.19(7) (7) The county zoning administrator shall maintain the records delivered under sub. (5) and any records provided under sub. (6) as provided under sub. (4).

88.19 History History: 1991 a. 316; 1993 a. 456.

88.19 Note NOTE: 1993 Wis. Act 456, which amended sub. (3) and created subs. (4) to (7), contains extensive explanatory notes.

88.20 88.20 Conflict of interest prohibited.

88.20(1) (1) No member of a drainage board shall be interested directly or indirectly:

88.20(1)(a) (a) In any contract with the drainage board; or

88.20(1)(b) (b) In any contract for work or materials in or for a drainage district; or

88.20(1)(c) (c) In any contract for the sale of machinery or materials for or to the drainage board; or

88.20(1)(d) (d) In the wages or supplies of persons employed on work in or for a drainage district.

88.20(2) (2) No board member shall deal in securities of a drainage district.

88.21 88.21 General powers of the drainage board. In addition to other powers expressly granted or necessarily implied, the drainage board may:

88.21(1) (1) Adopt and use a corporate seal.

88.21(2) (2) Sue and be sued and compromise suits and controversies.

88.21(3) (3) Bring all necessary actions for the collection of moneys and forfeitures belonging to a district under its jurisdiction and for the protection and preservation of all works and property thereof.

88.21(4) (4) Obtain injunctions to prevent unlawful interference with the performance of its duties or exercise of any of its powers.

88.21(5) (5) Employ legal counsel, engineers and other assistants. Any engineer employed by the board shall be selected from a list of professional engineers approved by the department of agriculture, trade and consumer protection. The department of agriculture, trade and consumer protection shall furnish each drainage board, upon request, a list of professional engineers whom it considers qualified by training and experience to give competent advice in drainage matters.

88.21(6) (6) Purchase or condemn such lands, whether within or outside a district, as are necessary for the construction, cleaning out, repair and maintenance of the drainage system and its works. Condemnation shall be as provided by ch. 32.

88.21(8) (8) Level or permit the leveling of spoil banks and excavated materials to allow cultivation or use for roadway or other lawful purposes if such use will not interfere with the proper functioning of the drains.

88.21(9) (9) Purchase or lease and maintain and operate the equipment and machinery necessary to construct, maintain or repair the drains within the districts under its jurisdiction, including the control of weeds or brush through use of herbicides.

88.21(10) (10) Purchase, construct, maintain and operate all levees, bulkheads, reservoirs, silt basins, holding basins, floodways, floodgates and pumping machinery necessary to the successful drainage or protection of any district or of any considerable area thereof, whether located within or outside the district.

88.21(11) (11) Call district meetings to report on the affairs of the district and to obtain the opinions and suggestions of landowners in the district with regard to the affairs of the district.

88.21(12) (12) Adopt rules and issue orders, which shall be published as a class 1 notice under ch. 985. In addition, any order that pertains to a specific named person or property shall be served on the person or owner of the property in the manner provided for service of a summons under s. 801.11. The court has jurisdiction to enforce an order of the drainage board by injunctive or other appropriate relief.

88.21(13) (13) Authorize legal counsel for the board to represent an individual owner of land with respect to any matter that arises under this chapter.

88.21 History History: 1989 a. 31; 1993 a. 456.

88.21 Annotation A drainage board is subject to shoreland zoning ordinances, as is any other person. Although soil conservation districts and drainage districts are created for a different purpose, some activities of both accomplish similar ends; therefore, each district retains control over those activities that it undertakes for the purposes for which it was created. 63 Atty. Gen. 355.

88.21 Annotation Ch. 30 applies to navigable ditches that were originally navigable streams. If a navigable ditch was originally nonnavigable or had no previous stream history, the Department of Natural Resources’ jurisdiction depends upon the facts of each situation. 63 Atty. Gen. 493.

88.212 88.212 Required actions for the drainage board. In addition to other powers expressly granted or necessarily implied, the drainage board shall:

88.212(1) (1) Beginning in 2009, and every 3 years thereafter, provide written notice to every person who owns land that is located within the drainage district that such land is in the district. The notice shall also include contact information for every member of the drainage board.

88.212(2) (2) Annually, provide contact information for every member of the drainage board to the state drainage engineer and to the clerk of every city, village, town, and county in which the drainage district is located.

88.212(3) (3) Not later than November 1 of each year, provide the clerk of each taxation district in which the drainage district is located a list of every assessment issued by the drainage board from November 1 of the previous year to October 31 of the current year. The information shall specify the assessment amount for every parcel in the district.

88.212(4) (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.