Wisconsin Legislature: ATCP 48.32(3)

(2) Corridors and drains. A county drainage board shall design, construct and maintain district drains and corridors to minimize soil erosion and the movement of suspended solids into district drains.

Note: Erosion control methods are described in the “Wisconsin construction site best management practices handbook” which is available for viewing at the county land conservation department, or for purchase from the Wisconsin department of administration, document sale division, 4622 University Avenue, Madison, WI 53705-2156.

(3) Vegetative cover.

(a) A county drainage board shall maintain effective vegetative cover, or equally effective erosion control practices, in every district ditch and corridor. When ditch banks are planted with vegetation to stabilize those banks, the plant variety or seed mixture shall be one of those listed in the United States department of agriculture natural resources conservation service technical guide, critical area planting standard 342, 1985 edition, including supplements through 1988. The application rate shall also conform to critical area planting standard 342. If construction or maintenance activities disturb the vegetative cover in a district ditch or corridor, the drainage board shall promptly replant the disturbed area to restore an effective vegetative cover.

Note: The United States department of agriculture natural resource conservation service technical guide is on file with the department, the secretary of state and the legislative reference bureau. Copies of individual standards may be obtained from the United States department of agriculture natural resources conservation service field offices and from county land conservation department offices.

(b) A county drainage board may permit land uses in district corridors that provide effective vegetative cover and erosion control.

(4) Inlets to district ditches. Inlets to district ditches, whether from private or district drains, shall be designed and maintained to prevent soil erosion. Surface drainage entering a district ditch shall be controlled by means of buffer strips, pipe inlets, drop spillways or other devices to prevent soil erosion and uncontrolled flow over ditch banks.

(5) Private drains.

(a) Private drains that transport water to district drains, whether from agricultural or nonagricultural lands, shall be designed, constructed and maintained to prevent soil erosion, and to minimize the movement of suspended solids into district drains. A county drainage board may require that private drains carrying water from nonagricultural lands be designed according to a stormwater management plan, and equipped with facilities such as settling ponds or detention basins to minimize excessive discharges of water or suspended solids into district drains.

(b) If a private drain does not comply with par. (a), the county drainage board may do any of the following:

1. Refuse to permit any connection between the private drain and the district drain.

2. Order that the private drain be modified to comply with par. (a).

3. Order that the private drain be disconnected from the district drain.

4. Pursuant to s. ATCP 48.02 (4), assess the owner of the private drain for construction costs incurred by the drainage district because the private drain does not comply with par. (a).

Note: A county drainage board may also initiate a court action against the owner of the private drain. The county drainage board may ask the court to enjoin violations of par. (a), and may seek recovery of damages incurred by the drainage district because of those violations. A person violating par. (a) may also be subject to a civil forfeiture under s. 88.11 (8), Stats.

(6) Erosion control practices on drained lands.

(a) An owner of land in a drainage district shall implement appropriate erosion control practices on that land to minimize soil erosion and the movement of suspended solids into district drains. A county drainage board may require a landowner to implement erosion control practices recommended by the United States department of agriculture natural resources conservation service, the county land conservation department or an engineer approved by the department.

(b) If a landowner fails to implement erosion control practices required by a county drainage board under par. (a), the county drainage board may do any of the following:

1. Refuse to permit any connection between the landowner’s private drain and the district drain.

2. Order the landowner to comply with par. (a).

3. Order that the landowner’s private drain be disconnected from the district drain.

4. Pursuant to s. ATCP 48.02 (4), assess the landowner for construction costs incurred by the drainage district because of the landowner’s failure to implement erosion control practices required by the county drainage board under par. (a).

Note: A county drainage board may also initiate a court action against a landowner who violates par. (a). The county drainage board may ask the court to enjoin violations of par. (a), and may seek recovery of damages incurred by the drainage district because of those violations. A landowner violating par. (a) may also be subject to a civil forfeiture under s. 88.11 (8), Stats.

History: Cr. Register, June, 1995, No. 474, eff. 7-1-95.

ATCP 48.32 Deposition of materials.

(1) Materials dredged or excavated in connection with the construction, restoration, repair or maintenance of district drains may be spread on land or placed in piles according to this section. Berms, levees and other depositions in a district corridor shall comply with this section.

Note: The deposition of dredged or excavated material may be subject to additional restrictions under federal, state and local laws.

(2) The deposition of excavated materials, whether by land spreading or piling, shall conform as nearly as practicable to the american society of agricultural engineers engineering practice number 407.1, section 5, as reconfirmed in December, 1996.

Note: Copies of ASAE EP 407.1, section 5 are on file with the department and the legislative reference bureau. Copies may be obtained from the department. A county drainage board may also contact the United States department of agriculture natural resources conservation service or the army corps of engineers for technical assistance related to the deposition of removed materials. The department can provide the addresses of these agencies.

(3) If dredged or excavated materials are spread on land, the materials shall be graded and smoothed to blend into cultivated lands. The surface slope of the spread materials shall not exceed a slope of 8:1. Spread materials may not be more than 2 feet deep at the top of a ditch bank.

Note: See Figure 1.

(4) No portion of a pile of dredged or excavated materials may be closer than 12 feet to the top of a ditch bank. Materials shall be piled at a stable angle of repose for those materials. No slope of any pile may exceed a slope of 2:1.

(5) No dredged or excavated material may be placed in a wetland except in compliance with applicable federal, state and local permit requirements.

Note: Figure 1, which is based on ASAE EP 407.01, section 5, illustrates the requirements of this section:

History: Cr. Register, June, 1995, No. 474, eff. 7-1-95; am. (2), Register, August, 1999, No. 524, eff. 9-1-99.

ATCP 48.33 Structures impeding drainage.

(1) Prohibition. Except as provided in sub. (2), no county drainage board may install or modify any structure in a district drain, or approve the installation or modification of any structure in a district drain, if the installation or modification causes or aggravates a deviation from the formally established grade profile of that district drain. An installation or modification is rebuttably presumed to cause or aggravate a deviation from the formally established grade profile if it raises the water level in a district drain, or slows the runoff of water from upstream lands in the drainage district.

Note: A “formally established” grade profile is a grade profile established by court order, or by the county drainage board under s. ATCP 48.20 or 48.21. A person installing or modifying a structure in a district drain may also need a permit from the state of Wisconsin department of natural resources if the district drain has a navigable stream history. See ss. 30.12, 30.18 (2), 30.20, 31.02, 88.31 and 88.62 (3), Stats. See also ch. 31, Stats.

(2) Temporary modifications. Subsection (1) does not apply to any of the following which the county drainage board undertakes or approves:

(a) A temporary structure or modification that is reasonably necessary to protect the public health, safety or welfare in an emergency.

(b) A temporary structure or modification that is necessary for other lawful construction or maintenance operations under this chapter.

(c) A temporary structure or modification to provide essential crop irrigation during a drought if all of the following apply:

1. The county drainage board gives written notice of the proposed structure or modification to every upstream landowner whose access to drainage [will] be affected. A structure or modification is deemed to affect a landowner’s access to drainage if it impedes gravity flow of water from his or her land, through a real or assumed drain, to any real or assumed outlet at the formally established cross-section and grade profile of the district drain.

Note: A missing word is shown in brackets.

2. The county drainage board resolves, to the satisfaction of the objecting landowner, every objection by an upstream landowner who is entitled to notice under subd. 1.

Note: For example, a county drainage board may resolve a landowner’s objection, to the satisfaction of a landowner, by imposing conditions under subd. 3 which protect the interests of that landowner.

3. The county drainage board approves the structure or modification subject to written conditions that reasonably protect the public interest and the interests of all landowners in the drainage district.

Note: A landowner withdrawing water for irrigation may need to obtain a permit from the state of Wisconsin department of natural resources under s. 30.18 (2) (a) 2., Stats.

(d) A temporary structure or modification to provide water for cranberry harvest, or for cranberry winter ice cover, if all of the following apply:

1. The structure or modification is installed for not more than 14 days for cranberry harvest, and not more than 14 days for cranberry winter ice cover. The county drainage board may, for good cause, extend a 14-day period for up to 7 more days at the request of a cranberry grower.

2. The county drainage board gives written notice of the proposed structure or modification to every upstream landowner whose access to drainage will be affected. A structure or modification is deemed to affect a landowner’s access to drainage if it impedes gravity flow of water from his or her land, through a real or assumed drain, to any real or assumed outlet at the formally established cross-section and grade profile of the district drain.

3. The county drainage board resolves, to the satisfaction of the objecting landowner, every objection by an upstream landowner who is entitled to notice under subd. 2.

4. The county drainage board approves the structure or modification subject to written conditions that reasonably protect the public interest and the interests of all landowners in the drainage district.

Note: A county drainage board may not authorize a cranberry grower to install a temporary structure under par. (d) for more than 14 days, except that the board may extend a 14-day authorization for up to 7 more days in response to a separate application from the cranberry grower under par. (d) 1. An authorization under par. (d) does not extend from season to season, or from year to year.

A county drainage board might be able to resolve a landowner’s objection under par. (d) 3., to the satisfaction of a landowner, by imposing conditions under par. (d) 4. which protect the interests of that landowner.

History: Cr. Register, August, 1999, No. 524, eff. 9-1-99.

Subchapter V — Construction Projects and Drainage Alterations; Department Approval

ATCP 48.34 Construction projects and drainage alterations; department approval required.

(1) Requirement. Except as provided in sub. (2), a county drainage board may not do any of the following without the department’s written approval:

(a) Construct or modify any district drain, or authorize any person to construct or modify a district drain.

(b) Install or modify any structure in a district drain, or authorize any person to install or modify any structure in a district drain.

(d) Take any action under s. ATCP 48.20 or 48.21 that changes the formally established cross-section, grade profile or alignment of a district drain, regardless of whether that action involves any physical alteration to a district drain or structure.

(2) Exemptions. Subsection (1) does not apply to any of the following:

(a) Actions, such as routine maintenance or repair projects, that do not cause or aggravate any deviation from the formally established cross-section, grade profile or alignment of a district drain. An action is rebuttably presumed to cause or aggravate a deviation from a formally established grade profile if it raises the water level in a district drain or slows the runoff of water from lands in the drainage district.

(b) Restoration projects.

Note: A restoration project is exempt under par. (b) only to the extent that it is confined within the formally established cross-section, grade profile and alignment of a district drain, and does not go beyond those formally established specifications. See definition of “restoration project” under s. ATCP 48.01 (21).

(c) Temporary structures or modifications that a county drainage board installs or approves in compliance with s. ATCP 48.33 (2).

Note: A county drainage board should consult with the department to determine whether a particular county drainage board action requires department approval under this section. A county drainage board may seek the department’s advice or assistance regarding any proposed construction, repair, restoration or maintenance action, regardless of whether the action requires the department’s approval under this section. A county drainage board should consult with the department at the early planning stage to facilitate timely assistance and, if necessary, timely approval. A county drainage board may not deviate from approved project specifications without the department’s approval.

A person may need to obtain a permit from the state of Wisconsin department of natural resources before undertaking a construction or restoration project in a district drain which has a navigable stream history. See ss. 30.12, 30.18 (2), 30.20, 31.02, 88.31 and 88.62 (3), Stats. See also ch. 31, Stats.

History: Cr. Register, June, 1995, No. 474, eff. 7-1-95; r. and recr. Register, August, 1999, No. 524, eff. 9-1-99.

ATCP 48.36 Applying for approval.

(1) Application required. A county drainage board shall apply in writing for department approval of a proposed action under s. ATCP 48.34. The application shall include all of the following information, in detail commensurate with the proposed action:

(a) District name or number. The name or number, or proposed name or number, of the drainage district.

(b) Proposed action. A statement describing the proposed action.

(c) Objectives. The objectives which the county drainage board expects to achieve by taking the proposed action. If the county drainage board expects to improve drainage, the county drainage board shall express its drainage objectives in terms of drainage volume, thoroughness of drainage, geographic scope of drainage, or other pertinent drainage measures.

(d) Persons requesting action. The persons, if any, who are asking the county drainage board to take the proposed action.

(e) Estimated cost. The estimated cost of the proposed action, including any damage awards to landowners who will be adversely affected.

(f) Design specifications. Design specifications for the proposed action, prepared by an engineer who is qualified under s. 88.21 (5), Stats. The design specifications shall comply with applicable standards under subch. IV. The engineer preparing the design specifications shall state whether, in the engineer’s judgment, the proposed action as designed will be effective in achieving the county drainage board’s stated objectives.

(g) Lands and waters affected. A map showing the location of the proposed action, and the location of the lands and waters affected by the proposed action. The map shall indicate all of the following if relevant:

1. The current and proposed use of the affected lands.

2. The topography of the affected lands.

3. The location of any affected wetlands.

4. The identity and location of any affected navigable waterway, stormwater management district, lake district, priority watershed or lake under s. 281.65, Stats., or wellhead protection area under ch. NR 811.

5. The identity and location of any affected building, transportation corridor or utility easement.

(h) Hydrology analysis. A hydrology analysis, prepared by an engineer who is qualified under s. 88.21 (5), Stats. The hydrology analysis shall analyze the effect of the proposed action, if any, on all of the following:

1. Water surface elevations in district drains at base flow. The hydrology analysis shall use a method described in ch. ATCP 48 Appendix A, or another method approved by the department, to estimate water surface elevations at base flow.

2. Peak water surface elevations in district drains in the event of a 10-year 24-hour storm event. The hydrology analysis shall use the method described in ch. ATCP 48 Appendix A, or another method approved by the department, to estimate peak water surface elevations in the event of a 10-year 24-hour storm event.