Drainage Districts 101: How Does Being In a Drainage District Affect a Property?

 Jennifer Lindsley  |    June 10, 2019
Drainage Districts 101

Drainage districts are special purpose districts formed to manage drainage of land. Special purpose districts are units of government created to provide specialized services within the respective district. These districts can tax residents of the district for services. Geographically, special purpose districts may cross city, town and village boundaries. School districts, sewerage districts and drainage districts are all examples of special purpose districts. 

There are about 176 drainage districts in Wisconsin, affecting property in 31 of Wisconsin’s 72 counties. Most are in eastern and southeastern Wisconsin. Land is drained using ditches or drain tiles that cross individual property boundaries. Landowners in drainage districts who benefit from drainage must pay assessments for construction, maintenance and repair of the drains within a district. Both the Real Estate Condition Report (E4) and the Vacant Land Disclosure Report (D3) prompt a seller to disclose whether his or her property is in a special purpose district, such as a drainage district, that has the authority to impose assessments against the real property located within the district. If a property owner is unsure whether the property is in a drainage district, the owner should contact the county drainage board. The county drainage board must notify property owners in the drainage district every three years that their property is in a drainage district. 

While drainage districts are typically associated with agricultural property, nonagricultural property exists within drainage districts. Nonagricultural property located in a drainage district may be used for a variety of uses including hunting and camping land, housing development and airports. Agricultural property in a drainage district may have different uses including sod, cranberries, alfalfa and livestock. 

How are drainage districts managed? 

County drainage boards, which are appointed by the circuit court, are responsible for the operation and maintenance of drainage districts within a county. Drainage districts can cross county boundaries, so a county drainage board’s jurisdiction may extend to another county. The Department of Agriculture, Trade and Consumer Protection (DATCP) is responsible for making sure the county drainage boards comply with the applicable laws.

What is the benefit for landowners within a drainage district?

A drainage district manages the drainage of lands within it. By having an organized system for removing water from property, landowners benefit from systematic and largely predictable drainage of precipitation from the property. Without a drainage district, one landowner’s attempt to drain a property may result in flooding a neighboring property owner’s land. A landowner within a drainage district shares the cost of maintaining established rights to drainage with other property owners, can rely on the county drainage board to enforce laws related to maintenance of drains, and can use the country drainage board to resolve some disputes related to drainage rather than having to pursue relief in circuit court. 

What is a drain?

A drain is defined in Wis. Stat. Chap. 88 Drainage of Lands as ‚Äúany device for the drainage of water from land or the protection of land from water, including open ditches, tiles, pipelines, pumps and levees.‚ÄĚ Drain is further defined in Wis. Admin. Code Chap. ATCP Drainage Districts to include ‚Äústructures and facilities, such as dams, culverts, pumps, inlet facilities, dikes, dams and levees, that are appurtenant to a drain.‚ÄĚ Not all drains in a drainage district are district drains that are maintained by the draining district resulting in an assessment on property. Private drains are any drain other than a district drain including those operated by the state or by a county, town, village or city. When engaging in a transaction involving a property that has drains, the agent should encourage both the seller and the buyer to confirm whether the drains are private or district drains. Maintenance of private drains is the responsibility of the landowner whereas maintenance of district drains is the responsibility of the county drainage board but assessed to the property. Additionally, private drains do not mean that the property is not in a drainage district, and private drains may connect with district drains, creating maintenance and notice obligations for the property owner.

For what can a property owner in a drainage district be assessed?

A property owner may be assessed to cover construction and maintenance costs, restoration costs, legal fees, loan or bond repayments, county drainage board operating expenses, consulting fees and employee salaries. The county drainage board records the order for assessments in the register of deeds in the county where the property is located. The assessments are liens on the property and take priority over other liens and mortgages on the property except liens for general taxes. Assessments are paid to the county treasurer. The county drainage board must file a satisfaction of lien when the assessment is paid in full.

What are some restrictions on property owners who have property in a drainage district? 

All landowners who intend to do any activity on their property that may affect a district drain must notify the county drainage board regardless of whether the property is actually in the drainage district. The county drainage board then reviews the planned activity and either gives or withholds approval. The county drainage board may require the property owner to modify proposed plans to obtain approval from the board. Proposed activities that would require approval of the county drainage board include changing land use such as grasslands into cropland, croplands into housing, cropland into wetlands, or pasture lands into croplands. Additionally, changes to existing drainage on a property such as damming a private drain, taking water from a district drain, or connecting a private drain to a district drain would all require approval from the county drainage board. 

A property owner whose property contains a district ditch is also prohibited from engaging in certain activities in the district corridor. The district corridor extends for 20 feet from the top of the ditch bank on each side of a district ditch. The corridor can be wider than 20 feet if necessary, to permit vehicle access or to protect water quality in the district ditch. A property owner is prohibited from row cropping in a district corridor or placing any building or other obstruction that interferes with the county drainage board’s ability to inspect, restore and maintain the district ditch and corridor.

How does this affect a real estate transaction?

A buyer will want to review the seller’s real estate condition report or vacant land disclosure report to see if the seller has disclosed that the property is in a special purpose district, such as a drainage district. If the seller has not disclosed this but there appear to be ditches or other drains on the property possibly indicating that it could be in a drainage district, the buyer can contact the county drainage board to confirm whether the property is in a drainage district. Additionally, maps of drainage districts can be found on the DATCP website at datcpgis.wi.gov/maps/?viewer=dd. If the property is in as drainage district, the buyer and seller will want to negotiate responsibility for payments of existing or pending assessments on the property. A buyer should also be cautioned to review how being in a drainage district might affect the buyer’s use of the property as well as responsibilities related to obligations from being in a drainage district. 

Jennifer Lindsley is Director of Training for the WRA.

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