Section 182.71. The Chippewa and Flambeau Improvement Company.

 

(1)  In this section:

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

(b) “Company" means the Chippewa and Flambeau Improvement Company.

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

(2)  

(a) The company shall produce as nearly a uniform flow of water as practicable in the Chippewa and Flambeau 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 throughout the length of these rivers is impracticable, the company shall maintain as nearly a uniform flow in the upper portions of these rivers as is practicable.

(3)  

(a) The company may create, acquire, lease, maintain and operate a system of water reservoirs located in or along:

1. The Court Oreilles River and its tributaries above the north line of township 38 north.

2. The east and west forks of the Chippewa River and their tributaries above a point one mile below the junction of such east and west forks.

3. The Thornapple River and its tributaries above its mouth.

4. Butternut Creek and its tributaries above its mouth.

5. The north fork of the Flambeau River and its tributaries above a point one mile below the junction of the Manitowish and Turtle rivers.

6. The south fork of the Flambeau River and its tributaries, including the Elk River, above the junction of the south fork of the Flambeau River and the Elk River.

(b) The company may construct, acquire, maintain and operate dams, booms and other structures in, along, or across any of these portions of the rivers and their tributaries to accomplish the purposes of this section. The company may clean out, straighten, deepen or otherwise improve any of these rivers and tributaries to improve navigation or to prevent injury to property bordering on the rivers.

(c) All franchises and all riparian rights and rights of flowage of any person or any corporation organized to improve the navigation of these rivers or their tributaries may be assigned to the company.

(4)  

(a) 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.

(b) The commission shall appraise the damage a taking or overflow of state lands may cause. The company shall pay the amount appraised into the state treasury prior to the taking or overflow.

(5)  

(a) If the company improves any tributary of the Chippewa River, or acquires the improvements or the control of the improvements of any river improvement company already operating on any tributary, and operates the works to allow the driving of logs and other floatables to the mouth of the tributaries, the company may charge uniform tolls for floatables driven on the tributary.

(b) If the company operates water reservoirs under this section capable of storing and discharging 1.5 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 Chippewa or Flambeau rivers or any of their 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 rent paid for leased properties and a net annual return on the cash capital actually paid in on the stock subscriptions to the company and on the par value of all negotiable bonds issued by the company. The commission shall determine the net annual return.

(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 not be subject to tolls for the entire period. A water power operating for less than 2 months during a 6-month toll period shall not be subject to a toll. The company shall employ hydraulic engineers, selected by the commission, 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 July 12, 1911. 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.

(f) No tolls shall be levied or used to pay for any part of the original acquisition or improvement of the reservoir system. The tolls shall be a lien on the water power, dam, franchises and flowage rights of the person or corporation charged with the tolls. The company may sue to enforce the lien or for the sale of the encumbered property.

(g) 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.

(6)  On or before June 15 and December 15 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 for maintenance and operation of the reservoir system.

(b) All capital stock the company issued and all outstanding negotiable bonds.

(c) The cash capital actually paid in.

(d) The storage capacity and location of each reservoir.

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

(f) A recommendation of the amount of tolls necessary to pay the cost of maintenance and operation and a net return of 6 percent per year on the capital invested, including the par value of the outstanding negotiable bonds, together with a recommendation as to the apportionment of the tolls against the owners or operators of improved powers under sub. (5) ; and

(g) Other information the commission may require.

(7)  

(a) The commission shall appraise and fix the price of any dam, land or flowage rights to be purchased by the company under this section. The commission shall approve any lease of property by the company prior to the payment of rent. The commission may require the department to aid in appraising the value of the land.

(b) If the company intends to acquire and overflow property, the commission shall approve the need to overflow the property. 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 time and extent of the drawing of water from the reservoirs, except as provided in s. 31.02 (4d) , and may compel the maintenance of all reservoirs established. The commission and the department may employ, at the expense of the company, hydraulic engineers and other persons to assist in obtaining information necessary to enforce this section. The cost of hiring the engineers shall be included as a part of the cost of construction or maintenance and operation of the reservoir system. The department is subject to the restrictions under s. 31.02 (4d) in issuing, amending, or revising an order under this paragraph for a dam that meets the conditions under s. 31.02 (4d) .

(c) The company may, after certification from the commission according to the procedures under ss. 201.03 to 201.04 , issue capital stock or negotiable bonds. The money received by the company upon account of capital stock or sale of its negotiable bonds shall be used to pay the original cost of purchase, construction or improvement of the reservoir system. All tolls collected under sub. (5) shall be applied only to the payment of cost of maintenance and operation of the system and payment of the net return on capital so that the capital stock and bonds of the corporation shall be maintained at par value at all times.

(d) Subject to approval of the commission, the company may issue negotiable interest-bearing bonds to provide funds to acquire dams, reservoirs and rights under this section. The issue shall not exceed one-half of the total cost of the improvement. The company may secure payment by mortgage of its property. If any bonds are issued and outstanding, all earnings of the capital stock shall be invested subject to the approval of the commission as a sinking fund for the purpose of retiring outstanding bonds, and while any bonds are outstanding, no dividends shall be paid to the stockholders of record.

(8)  This state shall have the right at any time, whenever it may have the constitutional power, to take over to itself and become owner of all reservoirs and other works and property acquired by the Chippewa and Flambeau Improvement Company, under this section, by paying therefor the cash capital actually paid on the capital stock of the company theretofore lawfully issued and outstanding or the actual value of the physical properties so taken over and without any allowance for franchises or goodwill of the business, such actual value to be determined by the commission.

(9)  This section shall not release any right, title or interest acquired by the state or that may be acquired under any federal law.

1979 c. 90 s. 20 ; 1979 c. 177 ; 1985 a. 182 s. 57 ; 1995 a. 196 ; 1997 a. 140 ; 1999 a. 150 ; 2015 a. 55 . Legislative Council Note, 1979: The Chippewa and Flambeau Improvement Company was created by ch. 640, laws of 1911, for the purpose of building, maintaining and operating dams and reservoirs on the Chippewa and Flambeau rivers. These improvements on the river serve to improve navigation, decrease the hazard of flooding and provide a uniform flow for all public purposes. Chapter 640, laws of 1911 , 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]