Section 182.70. Wisconsin Valley Improvement Company.

 

(1)   Definitions. In this section:

(a) “Capital invested" means capital actually paid in and the par value of all negotiable bonds or other obligations issued by the company.

(b) “Commission" means the public service commission.

(c) “Company" means the Wisconsin Valley Improvement Company, its successors and assigns.

(d) “Department" means the department of natural resources.

(2)   Purpose of the company.

(a) The company shall produce as nearly a uniform flow of water as practicable in the Wisconsin and Tomahawk rivers by storing in reservoirs surplus water for discharge when the water supply is low to improve the usefulness of the rivers for all public purposes and to reduce flood damage.

(b) If maintaining uniform flow in the Wisconsin River below and above the north line of Lincoln County at the same time is impracticable, the company shall give preference to maintaining uniform flow in portions of the river above this line.

(3)   Rights, powers and authority. Subject to chs. 30 and 31 :

(a)

1. The company may create, acquire or lease an entire reservoir project or otherwise maintain, operate or control a system of water reservoirs located in or along the Wisconsin river. These reservoirs shall be located north of township 37 north in or along the Wisconsin River, and in or along any tributary of the Wisconsin River that discharges into the river at any point north of the south line of township 23 north. The company may create, acquire, maintain and operate waterways to divert flood waters from or to the Wisconsin River to or from reservoirs on other rivers. Diversion of flood waters shall be subject to approval by the department. The company may construct, acquire and maintain dams, booms and other structures in, along or across this portion of the Wisconsin River and its tributaries to accomplish the purposes of this section. The company may clean out, straighten, deepen or otherwise improve any tributary to improve navigation of the tributary or of the Wisconsin River, or to prevent injury to property bordering on the rivers.

2. The company may not exercise the authority granted in subd. 1. on that part of the Eagle river and lakes lying between the point where the Eagle River enters Cranberry Lake, in section 31, township 40 north, range 11 east, and the Wisconsin River.

(b)

1. All franchises, other than corporate franchises, and all riparian rights and rights of flowage acquired by purchase or grant by any person or by any corporation organized to improve the navigation of the Wisconsin or Tomahawk river, or any of their tributaries may be assigned to the company.

2. Subdivision 1. shall not amend or repeal chapter 532, laws of 1887 , chapter 252, laws of 1889 , chapter 483, laws of 1905 , chapter 26, laws of 1903 , or any amendment to those chapters. The company may not exercise eminent domain over any property used under those chapters, nor any other property devoted to public uses except as authorized in pars. (c) and (f) .

(c) The dam authorized by chapter 532, laws of 1887 , may be raised, or a new dam or dams may be constructed and maintained, in the Eagle River between Long and Cranberry lakes in townships 39 and 40 north, range 11 east, to raise the water in Long Lake 6 inches higher than the high water mark established by the dam authorized by chapter 532, laws of 1887 . Between May 1 and the succeeding November 1 the waters shall not be drawn down in Long Lake more than 18 inches below the high water mark. The company shall maintain the navigability of Eagle River between Long and Cranberry lakes for boats up to 50 feet in length with 12-foot beam and drawing 5 feet of water. If the construction, maintenance or operation of the new dam or dams requires the removal of the dam maintained under chapter 532, laws of 1887 , or impairs the use of the dam or its appurtenances as a bridge across the Eagle River, the company shall either:

1. Provide a suitable bridge for H 15 loading, as provided in the standard specifications for highway bridges, adopted by the American association of state highway and transportation officials (1977), with suitable approaches, for safe and convenient passage over the new dam, or if more than one dam is built, over the dam nearest to the dam maintained under chapter 532, laws of 1887 ; or

2. At its election provide a suitable new bridge and approaches across the river at a point that will conveniently connect with the highway crossing the river.

(d) The company may collect uniform tolls for the passage of boats over the dam the company builds under par. (c) , proportioned to the size of the boat. The total fees collected may not exceed the cost of the care, maintenance and operation of the means of passage.

(e) The company may acquire by condemnation any property, interest in property or other right necessary to create, maintain or operate any reservoir, dam or other improvement, if the property cannot be purchased at an agreed price.

(f) The commission shall appraise the damage caused by a taking or overflow of state lands occurring under this section. The company shall pay the amount appraised to the state treasury.

(4)   Private remedies. Any owner whose premises or access to the premises are injured by being divided, surrounded by water, flooded or waterlogged, or whose natural drainage is destroyed or injured by any dam or other construction built or operated by the company, may sue for damages or an injunction in the circuit court for the county where some part of the damaged lands are located. The injured party may choose a trial by jury.

(5)   Tolls.

(a) If the company improves any navigable tributary of the Wisconsin River, except that part of the Eagle River designated in sub. (3) (a) 2. , or acquires the improvements or control of the improvements of any river improvement company already operating on these tributaries, and operates the works to allow the driving of logs and other floatables to the mouth of the tributary, the company:

1. May charge uniform tolls for floatables driven on the tributary; and

2. Shall have all of the rights and remedies granted to river improvement companies by law.

(b) If the company operates water reservoirs under this section capable of storing and discharging 2 billion cubic feet of water that would not be naturally stored, it may charge uniform tolls to the owners, lessees or operators of every improved and operated water power located upon the Wisconsin River or any of its tributaries below any of these reservoirs and benefited by the operation of these reservoirs. The sum of the tolls may not exceed the reasonable costs of operation and maintenance, including taxes and depreciation, plus a net return not exceeding 7 percent on the capital invested and a reasonable allowance for working capital. The tolls shall be a first lien, subject only to taxes, on the water power, dam, franchise and flowage rights of the person or corporation charged with the tolls. The company may sue to enforce the lien or for sale of the encumbered property.

(c) The commission shall fix the tolls semiannually in proportion to the benefits received from the reservoir system by each improved and operated water power. A water power liable to tolls and operated 2 months or more during a 6-month toll period shall be subject to tolls for the entire period. A water power operating for less than 2 months during a 6-month period shall not be subject to a toll. The company shall employ hydraulic engineers to assist the company and the commission in determining the tolls to be charged. The expense of employing the engineers shall be a part of the cost of maintenance and operation of the works.

(d) The owners or operators of the improved water power shall pay tolls charged under this subsection, unless the improved water power is operated by lessees under a contract made prior to October 6, 1939. In that case the lessees shall pay the tolls.

(e) The commission shall provide notice to each water power operator to be charged with tolls. The commission shall determine and certify the amount of the tolls to be collected from each water power operator for the period under consideration. The tolls shall then be due the company.

(6)   Review. A party aggrieved by the determination of tolls to be collected may petition for a hearing. A person whose substantial interests have been adversely affected by the commission's decision may seek judicial review under ss. 227.53 to 227.58 , in the circuit court in the county where the property affected is located.

(7)   Reports to the commission. On or before June 30 and December 31 of each year, the company shall provide the commission with a statement showing:

(a) All expenditures made or necessary to be made for the 6-month period preceding the next July 1 or January 1. Expenditures itemized shall include maintenance, operation and depreciation of the reservoir systems.

(b) The location of each reservoir.

(c) All reports and data obtained from engineers employed to determine tolls charged.

(d) A recommendation of the amount of tolls necessary to pay the cost of maintenance, operation, taxes and depreciation, a net return not exceeding 7 percent on the capital invested, and a reasonable allowance for working capital, together with a recommendation on the apportionment of costs against the owners or operators of improved powers.

(e) Other information and statements the commission may require.

(8)   Duties of the department. The department shall mark the height to which any dam may raise the water level by permanent monuments and bench marks, shall supervise and control the times and extent of the drawing of the water from the reservoirs, and may compel the maintenance of all reservoirs established.

(9)   Issue of capital stock and secured bonds approved by the commission.

(a) The company may, after certification from the commission according to the procedures under ss. 201.03 and 201.04 , issue bonds or other obligations secured by pledge, assignment, mortgage or trust deed of its property.

(b) The company may retire its secured obligations by issuing stock as payment.

(10)   State acquisition. The state has the right, whenever it has the constitutional power, to take over to itself, and become the owner of all reservoirs and other works and property acquired by the company under this section, by paying for the property either of the following:

(a) The total capital invested by the company, including outstanding bonds or other obligations of the company lawfully issued and outstanding, the computation of which shall include outstanding bonds or other obligations and stock or stocks plus undistributed earned surplus.

(b) The actual value of the physical properties to be taken over, without any allowance for franchise or goodwill of the business. If the actual value cannot be agreed upon by the state and the owner, it shall be determined by the commission.

1979 c. 90 s. 19 ; 1983 a. 189 ; 1985 a. 182 s. 57 ; 1995 a. 196 ; 1997 a. 140 ; 1999 a. 83 , 150 . Legislative Council Note, 1979: The Wisconsin Valley Improvement Company was created by ch. 335, laws of 1907, for the purpose of building, maintaining and operating dams and reservoirs on the Wisconsin River and its tributaries. These improvements on the river serve to improve navigation, decrease the hazard of flooding and provide a uniform flow for all public purposes. Chapter 335, laws of 1907 , as amended, is incorporated into the statutes and amended to reflect current statutory drafting practices, without any intention of making substantive changes in the law. [Bill 458-A]