200.35 Sewerage construction, operation and maintenance.

(1) General powers of the commission. To the extent necessary to carry out its duties under s. 200.31, the commission may project, plan, design, adopt, construct, operate and maintain:

(a) District, interceptor and outfall sewers.

(b) Conduits, drains and pumping and other plants for the collection and transmission of residential, industrial and other sanitary sewage from local sewers to and into the interceptor sewers of the district.

(c) Facilities for the treatment and disposal of sewage transmitted into the interceptor sewers of the district.

(d) Pumping stations and tunnels for the purpose of flushing any of the rivers flowing through the district.

(e) Storm sewers and other facilities and structures for the collection and transmission of storm water and groundwater.

(f) Buildings, structures and facilities appurtenant to structures authorized under pars. (a) to (e).

(2) River and lake beds.

(a) Except as provided in par. (b), the commission may lay, construct and maintain, without compensation to the state, any part of the sewerage system or of its works or appurtenances over, upon or under any part of the bed of any river or its branches flowing through the district, or of any land that has not been the subject of a state lake bed grant to a county in which a 1st class city is located and that is covered by any of the outlying waters, as defined in s. 29.001 (63).

(b) Nothing in this subchapter authorizes the commission to lay or construct any part of the sewerage system after April 27, 1982, over, upon or under any land covered by any outlying waters, as defined in s. 29.001 (63), unless the commission first obtains the prior consent of both houses of the legislature and the governor.

(3) Waterways. The commission may lay, construct and maintain any part of the sewerage system over, upon or under canals or other waterways.

(4) Delivery of deeds; DNR permits. Upon application of the commission the proper officers of this state shall execute, acknowledge and deliver to the proper officers of the district any deed or other instrument as may be proper for the purpose of fully confirming the grants under subs. (2) and (3). Notwithstanding s. 30.05, the district may not commence an action under sub. (2) or (3) without obtaining all of the necessary permits from the department of natural resources under ch. 30.

(5) Compliance with local zoning; deviations.

(a) In its actions under this subchapter, the commission shall comply with local zoning and land use ordinances unless it finds that, in carrying out its responsibilities under this subchapter, deviation from these ordinances meets the test of public necessity, as that term is used for the purposes of ch. 32. The commission may only make determinations of public necessity by resolution. This paragraph does not authorize the commission to deviate from floodplain or shoreland zoning ordinances.

(b) If the commission makes a determination of public necessity to deviate from a local zoning or land use ordinance, it shall serve a copy of the resolution by certified mail upon the clerk of the municipality whose ordinance is involved, including a statement that judicial review is available only for 90 days. Any aggrieved person may commence an action in the circuit court of the county in which the municipality is located to challenge the commission's determination within 90 days from the date of postmark. Any action under this paragraph shall name the district as a defendant. An action under this paragraph is the only manner by which the commission's determination of public necessity for deviating from such an ordinance may be challenged. The circuit court shall give precedence to a trial of the issues raised in such an action over all other actions not then on trial in the court. Failure to commence an action within 90 days from the date of postmark bars the raising of any objection by any person to the commission's determination of public necessity. This subsection does not limit any proceeding under s. 32.05.

(6) Removing obstructions.

(a) The commission may require that any owner of any building, structure or other physical obstruction in, over or under the public lands, avenues, streets, alleys or highways in the district that blocks or impedes the construction, operation or maintenance of the sewerage system, upon reasonable notice by the commission, promptly shift, adjust, accommodate or remove the obstructions as needed to permit the commission to carry out its responsibilities. The district shall pay 50 percent of the owner's costs of complying with this subsection.

(b) If the owner fails after reasonable notice to discharge any duty imposed under par. (a) the owner may, in addition to any other available remedy or remedies, be fined $100 for each offense plus an additional $50 for each day that the owner's failure continues.

(c) This subsection also applies to any building, structure or other physical obstruction in, over or under the public highways of any county of this state into which the sewerage system extends.

(7) Road alterations and traffic control. The commission may, in a manner acceptable to the department of transportation, excavate in or otherwise alter any state, county or municipal street, road, alley or public highway in the district for the purpose of constructing, maintaining and operating the sewerage system or to construct in the street, road, alley or public highway an interceptor or district sewer or any appurtenance thereof, without providing a bond. The commission shall notify the public authority that controls the street, road, alley or public highway at least 45 days prior to the date the commission intends to advertise for bids as to the location where the excavation or alteration will take place. The public authority shall prepare a reasonable traffic control plan and provide the plan to the commission within 30 days after receiving the notice. The commission shall pay a reasonable fee for development of the plan and shall include the plan in its bidding documents. The commission shall pay the costs of implementing the traffic control plan during the period of construction. Upon completing the work the commission shall restore the street, road, alley or public highway at its own expense to a condition as good as or better than existed before the commencement of the work.

(8) River and stream alterations.

(a) Subject to s. 30.20 and to any applicable rule of the department of natural resources, the commission may improve any river or stream within the district by deepening, widening or otherwise changing it as the commission finds necessary in order to carry off surface or drainage water.

(b) The commission may make improvements outside the district of any river or stream that flows from within the district to a point outside the district. The commission may contract with any governmental body that owns or controls any lands through which such a river or stream flows for the payment of that part of the cost of the improvement in the territory governed by the body that is wholly or partially outside the district.

(9) Water diversion.

(a) Within the district, the commission may divert storm water, groundwater and water from lakes, rivers or streams into drains, conduits or storm sewers but no surplus waters or floodwaters shall be diverted or bypassed into any lake, river or stream in another watershed. Before diverting water from any lake, river or stream into an enclosed drain, conduit or storm sewer or similar structure, the commission shall comply with pars. (b) and (c).

(b) The commission shall apply to the department of natural resources for a permit for the diversion. Upon receipt of an application for a permit, the department shall fix a time, not more than 8 weeks after receiving the application, and a convenient place for a public hearing on the application. The department shall notify the commission of the time and place and the commission shall publish a notice of the time and place of the hearing once each week for 3 successive weeks before the hearing in at least one newspaper designated by the department of natural resources and published in the district.

(c) In addition to the publication required under par. (b) the commission, not less than 20 days prior to the hearing, shall mail a notice of the hearing to every person who has recorded an interest in any lands that are likely to be affected by the proposed diversion and whose post-office address can be ascertained by due diligence. The notice shall specify the time and place of the hearing, shall be accompanied by a general statement of the nature of the application and shall be forwarded to these persons by registered mail in a sealed and postpaid envelope properly addressed. The commission shall file proof of the publication and mailing of notice with the department of natural resources. At the hearing or any adjournment thereof, the department of natural resources shall consider the application and shall take evidence offered by the commission and other persons in support of or in opposition to the application. The department may require that the application be amended. If the department finds after the hearing that the application is in the public interest, will not violate public rights and will not pose an unreasonable risk to life, health or property, the department shall issue a permit to the commission.

(10) Preliminary work. The commission may make all preliminary investigations and perform all preliminary work as should, in the commission's judgment, precede the actual projection, construction and establishment of the sewerage system.

(11) Examinations and tests.

(a) The commission may enter upon any land or water in the district for the purpose of making examinations, test borings, tests or surveys in the performance of its responsibilities under this subchapter. The commission shall compensate for damage caused by its examinations, test borings, tests or surveys. The commission may examine any sewer or sewerage system to determine if the sewer or sewerage system is defective in operation, construction, design or supervision.

(b) Except as provided in par. (c), prior to entry onto land under this subsection the district shall obtain the consent of the owner.

(c) If the consent of the owner cannot be obtained, the district shall obtain a special entry warrant prior to entry onto the land. To obtain a special entry warrant, the district shall petition the circuit court for the county in which the land to be entered is located and shall mail a copy of the petition by registered mail to the owner's last-known address, if any. If the court determines that entry onto the land is reasonably related to the performance of the district's responsibilities under this subchapter, the court shall issue the warrant on the district's affidavit that the district intends to enter the land under this subsection, that the district has mailed, at least 5 days prior to the affidavit, a copy of the petition for the warrant to the owner as required in this paragraph and that the district has been otherwise unable to obtain the owner's consent.

(12) Disposal of treated sewage. Subject to any applicable rule of the department of natural resources, the commission may dispose of treated sewage by commercial or charitable means and may expend an amount reasonably necessary for this purpose.

(13) Laboratory testing. The commission may operate laboratory facilities for testing sewage for any municipality or user, but may not require that any municipality or user use these facilities.

(14) Shore protection projects.

(a) In this subsection:

1. “Political subdivision" means a county, city, village or town.

2. “Project" means a shore protection or erosion control project which consists, in whole or in part, of waste rock produced by construction projects undertaken by the commission and which has been requested, by resolution, by a political subdivision with territory in the district's service area.

(b) The commission may construct a project. This paragraph does not apply to the construction of any project on or after January 1, 1992.

(c) Prior to construction of a project under this subsection, the commission and the political subdivision requesting the project shall obtain all necessary permits and approvals from the state and from any governmental unit with jurisdiction of the area where the project is proposed to be located. If the project is proposed to be located on an area of lake bed the title of which has been granted by the state to a political subdivision, the commission may not construct the project unless that political subdivision approves the location of the project.

(d)

1. The commission shall pay for the portion of the cost of a project constructed by the commission under this subsection which equals the difference between the cost of disposing of the waste rock at a disposal site which is approved by the department of natural resources and which is outside of the district's service area and the cost of disposing of the waste rock in the project.

2. If the cost of a project exceeds the amount paid by the commission under subd. 1., the political subdivision which requests the project shall pay 15 percent of the excess cost or $300,000, whichever is less, and the commission shall pay the remainder, except as provided under subd. 3.

3. The commission may not pay under subd. 2. a total of more than $2,690,000 for all projects constructed under this subsection.

4. A political subdivision which requests a project under this subsection may not charge the commission a fee for disposing of the waste rock in the project.

(e) If water no more than 300 feet in distance separates a completed project from the shore, the political subdivision which requests the project shall construct facilities to provide pedestrian access between the completed project and the shore.

(f) The political subdivision which holds title to the lake bed on which a project is constructed by the commission under this subsection holds title to that project and is responsible for any maintenance required after the project is completed. The commission may not make any claim relating to an ownership interest in that project.

(g) Paragraphs (d) to (f) do not apply to any project which includes a solid waste disposal facility which requires an operating license under s. 289.31.

History: 1981 c. 282, 391; 1983 a. 27 s. 2202 (38); 1985 a. 187; 1987 a. 130; 1989 a. 366; 1995 a. 227; 1997 a. 248; 1999 a. 150 s. 583; Stats. 1999 s. 200.35; 2015 a. 55.