Chapter Trans 401

Trans 401.09(2)(a) (a) Upon the department’s written acceptance of permanent best management practices at a site, or upon the department’s granting of partial acceptance for a portion of work, the prime contractor’s responsibility to maintain those accepted best management practices, or that portion of work for which partial acceptance is granted, shall cease except for any responsibility for defective work or materials or for damages caused by its own operations.

Trans 401.09(2)(b) (b) In the case of a utility facility project, a utility person shall promptly notify the department upon completion of all construction or maintenance activities and the installation of all permanent best management practices at a project site. Within a reasonable time after that notification by the utility person, the department shall inspect the project site to ensure that the permanent best management practices are adequate and functioning properly. If the inspection of the project site reveals that the best management practices are not adequate or not functioning properly, the utility person, upon notification from the department or based on its own inspection, shall promptly take the appropriate corrective action. Where the utility person takes corrective action based on its own inspection of a project site, the utility person shall immediately notify the department of that corrective action.

Trans 401.09 History History: Cr. Register, October, 1994, No. 466, eff. 11-1-94; CR 02-081: renum. (intro.) and (1) to be (1g) and (1m) and am., am. (2) Register December 2002 No. 564, eff. 1-1-03.

Trans 401.10 Trans 401.10 Inspections.

Trans 401.10(1) (1) General. The project engineer or inspector shall inspect the project site and any selected site of a project described in s. Trans 401.03 (1) (a) or (c). A utility person shall, and the department’s authorized representative may, inspect the site of a utility facility project. The inspection shall determine whether best management practices for a project required by the erosion control plan, the ECIP and other contract documents, as defined in s. Trans 401.12 (1) (a), are properly implemented, installed, and functioning, determine whether the best management practices for a project site or selected site are adequate for the purposes intended and for the site conditions, and identify any corrective action that is necessary. The project engineer or inspector shall invite the prime contractor, or his or her designee, to accompany the project engineer or inspector during inspections described in sub. (2) at least one hour before commencing the inspection. The project engineer or inspector is not required to wait more than one hour after such invitation, or past the time stated for the inspection, before commencing the inspection. A utility person shall allow a department representative to accompany the utility person during any inspection of a utility facility project. An inspector who inspects a site shall provide a copy of the completed inspection report form to the project engineer immediately following the inspection. Within 24 hours after completing an inspection, the person who performs the inspection shall deliver a copy of the completed inspection report to the appropriate department representative. Inspections shall continue at the frequency required in sub. (2) until the installation of permanent stabilization of disturbed areas is completed and the temporary best management practices are removed.

Trans 401.10 Note Note: Inspectors are encouraged to provide reasonable advance notice. One hour is the minimum required advance notice. More time may be appropriate to provide the prime contractor a real opportunity to accompany an inspector.

Trans 401.10(2) (2) When required. Inspections shall be conducted at least once per week during the time construction or maintenance activity is being pursued on a project site or selected site, and at all of the following times:

Trans 401.10(2)(a) (a) Within 24 hours after every precipitation event that produces 0.5 inches of rain or more during a 24–hour period, or that results in any discharge, to determine the appropriate corrective action, if any. The department of transportation shall notify the department of natural resources within 24 hours after learning of any prohibited discharge from a project site or selected site into waters of the state.

Trans 401.10(2)(b) (b) At each stage, as new portions of a project site or selected site are disturbed.

Trans 401.10(2)(c) (c) Upon completing the installation of permanent best management practices to stabilize disturbed areas at a project site or selected site.

Trans 401.10(2)(d) (d) At the completion of the project. The inspection to be performed at the completion of the project shall be made before the department provides the prime contractor with written notice of final acceptance of the project.

Trans 401.10(4) (4) Report. The department shall prescribe an inspection report form for documenting the findings of an erosion control inspection for use statewide on all projects directed and supervised by the department other than utility facility projects. The inspector shall document each inspection on the inspection report form. The inspection report is considered part of a project diary. The department shall publish the inspection report form in the construction and materials manual, and the form takes effect upon publication. The inspection report and any form required for use on utility facility projects shall contain all of the following:

Trans 401.10(4)(a) (a) The date or dates of inspection.

Trans 401.10(4)(ag) (ag) The names of the inspector, prime contractor or utility person, and erosion control subcontractor.

Trans 401.10(4)(am) (am) The project identification number or permit number.

Trans 401.10(4)(b) (b) Any comments concerning the effectiveness of in–place best management practices.

Trans 401.10(4)(c) (c)

Trans 401.10(4)(c)1. 1. A statement of whether each type of best management practice required by the ECIP complies with that plan. The inspection report shall specify the location and deficiency of any best management practices that do not comply with the erosion control plan, the ECIP and any other contract documents, as defined in s. Trans 401.12 (1) (a).

Trans 401.10(4)(c)2. 2. Any reasonable corrections needed to restore, maintain or increase the effectiveness of existing best management practices.

Trans 401.10(4)(c)3. 3. The prime contractor is not required to make any corrections as a result of an inspection unless an erosion control order is issued under s. Trans 401.105.

Trans 401.10(4)(c)4. 4. A utility person shall take any corrective action that is consistent with the permit issued by the department and that is ordered, verbally or in writing, by the department or the department’s authorized representative.

Trans 401.10(4)(d) (d) Written notes commemorating any verbal communications between the project engineer, inspector, contractor or utility person regarding erosion control and storm water management.

Trans 401.10(4m) (4m) Report available to contractor. Within 24 hours after completing an inspection, the project engineer or inspector shall post the completed inspection report prepared under sub. (4) on the site to which the report relates.

Trans 401.10(5) (5) Review. The department shall make copies of the written inspection reports either separately or as part of the project diary, available for review by other agencies and the public.

Trans 401.10(6) (6) Records. After a project is completed and the final inspection has been made, the department shall maintain copies of the written inspection reports and erosion control orders in the project’s files, or with the project’s permit application or approval document, if any, for a period of not less than 3 years after the date the department accepted the completed project.

Trans 401.10 History History: Cr. Register, October, 1994, No. 466, eff. 11-1-94; CR 02-081: r. (intro.), (2) (intro.), (a) (intro.) and (b), am. (1), (4) (intro.), (b), (d), (5) and (6), renum. (2) (a) 1. to 3. and (4) (c) to be (2) and (4) (c) 2. and am., renum. (3) to be Trans 401.105 and am., cr. (4) (ag), (am), (c) 1., 3., 4. and (4m) Register December 2002 No. 564, eff. 1-1-03.

Trans 401.105 Trans 401.105 Corrective action.

Trans 401.105(1) (1) 

Trans 401.105(1)(a) (a) An inspector who believes that changes or corrections are needed to best management practices may, by written order delivered to the prime contractor, temporarily suspend work until the project engineer is notified and decides all questions at issue. The prime contractor shall respond to the order in a manner consistent with the contract documents, as defined in s. Trans 401.12 (1) (a). The project engineer shall, by written notice, inform the prime contractor whenever an inspection of a project site or selected site reveals the need for changes or corrections to best management practices.

Trans 401.105(1)(b) (b) The department shall prescribe an erosion control order form for use whenever a corrective action is ordered on any project directed and supervised by the department. The department shall publish the form in the construction and materials manual. The project engineer shall include a copy of the completed inspection report with every erosion control order issued.

Trans 401.105 Note Note: Erosion control order forms may be obtained upon request by writing to the Department’s Division of Transportation Infrastructure Development, Bureau of Environment, P. O. Box 7965, Room 451, Madison, WI 53707-7965, or by calling [phone].

Trans 401.105(1m) (1m) An authorized representative of the department shall inform the utility person, verbally or in writing, whenever an inspection of the project site by the department reveals the need for changes or corrections to best management practices. A utility person shall comply with any corrective action order, written or verbal, issued by the department’s authorized representative within the time specified in the order or, if no time is specified, within 24 hours after receiving the order. Upon completing the corrective action, the utility person shall notify the appropriate department representative of the corrective action taken and the date completed.

Trans 401.105(2) (2) Upon receipt of an erosion control order form ordering changes or corrections to existing best management practices, the prime contractor shall implement, or cause to be implemented, the necessary corrective action within the time specified in the order or, if no time is specified, within 24 hours after receiving the order. The prime contractor shall deliver the erosion control order form to the project engineer upon completion of the corrective action and shall include on the form a description of the corrective action implemented and the date completed.

Trans 401.105(3) (3) The department may approve or reject any completed corrective action by inspecting the affected area within 16 hours after the prime contractor or utility person delivers the completed erosion control order form to the project engineer or, for utility facility projects, to the department’s authorized representative. The department shall consider all matters required in an erosion control order satisfactorily completed after that 16 hours has elapsed, or at 12 noon on the day the 16 hours expires, whichever is later, unless within the later of those 2 times the department has inspected and rejected the corrective action implemented. If a discharge occurs after the prime contractor or utility person delivers the erosion control order form under this section but before the later of those 2 times, the prime contractor or utility person shall have an opportunity to demonstrate that the corrective action was completed as required prior to the discharge. If the department does not reject any completed corrective action within the time specified in this subsection, the department may compel corrective action at the affected area only by issuing a new erosion control order.

Trans 401.105(4) (4) Notwithstanding any time period permitted under this section for completing corrective action, a prime contractor is considered not in compliance with the contract documents, as defined in s. Trans 401.12 (1) (a), for any area or matter described in the erosion control order form as requiring changes or corrections until such time as the change or correction is satisfactorily completed, as determined under sub. (3).

Trans 401.105(5) (5) Written notices are considered delivered to a prime contractor for purposes of this section when the written notice is presented to the head representative of the prime contractor then available on the project site or selected site, or when written notice is delivered to the prime contractor’s principal place of business, whichever occurs earlier. Written notices are considered delivered to a project engineer or to the department when the written notice or form is presented to the project engineer or to the authorized department representative then available on the project site, or when written notice is delivered to the project engineer’s principal place of business, whichever occurs earlier.

Trans 401.105 History History: CR 02-081: renum. from Trans 401.10 (3) and am., cr. (1m) Register December 2002 No. 564, eff. 1-1-03.

Trans 401.106 Trans 401.106 Post-construction performance standard.

Trans 401.106(1) (1) Definitions. In this section:

Trans 401.106(1)(a) (a) “Average annual rainfall” means the rainfall determined by the following year and location for the location nearest the project site: Madison, 1981 (Mar. 12-Dec. 2); Green Bay, 1969 (Mar. 29-Nov. 25); Milwaukee, 1969 (Mar. 28-Dec. 6); Minneapolis, 1959 (Mar. 13-Nov. 4); Duluth, 1975 (Mar. 24-Nov. 19).

Trans 401.106(1)(b) (b) “TR-55” means the United States Department of Agriculture, Natural Resources Conservation Service (formerly Soil Conservation Service), Urban Hydrology for Small Watersheds, Second Edition, Technical Release 55, June 1986, or Technical Release 55 for Windows (Win TR-55), 2002.

Trans 401.106 Note Note: TR-55 is on file with the offices of the Legislative Reference Bureau, the Secretary of State, and the Department of Transportation, Office of General Counsel. Copies may be obtained by writing to the U.S. Department of Agriculture, Natural Resources Conservation Service, Conservation Engineering Division, 14th and Independence Avenue, SW., Room 6136-S, Washington, DC 20250. The phone number for the division is: 202-720-2520, and the fax number is: 202-720-0428. TR-55 is available electronically at:

Trans 401.106 Note ftp://ftp.wcc.nrcs.usda.gov/wntsc/H&H/other/TR55documentation.pdf

Trans 401.106(2) (2) Plan. The department shall develop and implement a written plan that includes the requirements of subs. (3) to (10) for each transportation facility. This plan may be part of the erosion control plan.

Trans 401.106(3) (3) Total suspended solids. Best management practices shall be designed, installed and maintained to control total suspended solids carried in runoff from the transportation facility as follows:

Trans 401.106(3)(a) (a) For transportation facilities first constructed on or after January 1, 2003 by design, reduce the suspended solids load to the maximum extent practicable, based on an average annual rainfall, as compared to no runoff management controls. A reduction in total suspended solids by at least 80% meets the requirements of this paragraph.

Trans 401.106(3)(b) (b) For highway reconstruction and non-highway redevelopment, by design, reduce to the maximum extent practicable the total suspended solids load by at least 40%, based on an average annual rainfall, as compared to no runoff management controls. A 40% or greater total suspended solids reduction shall meet the requirements of this paragraph. In this paragraph, “redevelopment” means the construction of residential, commercial, industrial or institutional land uses and associated roads as a substitute for existing residential, commercial, industrial or institutional land uses.

Trans 401.106(3)(c) (c) Notwithstanding pars. (a) and (b), if the design cannot achieve the applicable total suspended solids reduction specified, the design plan shall include a written and site-specific explanation why that level of reduction is not attained and the total suspended solids load shall be reduced to the maximum extent practicable.

Trans 401.106(4) (4) Peak discharge.

Trans 401.106(4)(a) (a) By design, BMPs shall be employed to maintain or reduce the peak runoff discharge rates, to the maximum extent practicable, as compared to pre-development site conditions for the 2-year 24-hour design storm or to the 2-year design storm with a duration equal to the time of concentration applicable to the transportation facility. Pre-development conditions shall assume “good hydrologic conditions” for appropriate land covers as identified in TR-55 or an equivalent methodology. The meaning of “hydrologic soil group” and “runoff curve number” are as determined in TR-55. However, when pre-development land cover is cropland, rather than using TR-55 values for cropland, the runoff curve numbers in Table 2 below shall be used.

- See PDF for table

Trans 401.106 Note Note: The curve numbers in Table 2 represent mid-range values for soils under a good hydrologic condition where conservation practices are used and are selected to be protective of the resource waters.

Trans 401.106(4)(b) (b) This subsection does not apply to:

Trans 401.106(4)(b)1. 1. A transportation facility where the change in hydrology due to development does not increase the existing surface water elevation at any point within the downstream receiving surface water by more than 0.01 of a foot for the 2-year 24-hour storm or for a 2-year design storm with a duration equal to the time of concentration.

Trans 401.106 Note Note: Hydraulic models, such as HEC-2 or an equivalent methodology, may be used to determine the change in surface water elevations.

Trans 401.106(4)(b)2. 2. A highway reconstruction site.

Trans 401.106(5) (5) Infiltration.

Trans 401.106(5)(a) (a) Except as provided in pars. (d) to (g), BMPs shall be designed, installed and maintained to infiltrate runoff to the maximum extent practicable in accordance with one of the following:

Trans 401.106(5)(a)1. 1. Infiltrate sufficient runoff volume so that the post-construction infiltration volume shall be at least 60% of the pre-construction infiltration volume, based on an average annual rainfall. However, when designing appropriate infiltration systems to meet this requirement, no more than 2% of the project site is required as an effective infiltration area.

Trans 401.106(5)(a)2. 2. Infiltrate 10% of the post-development runoff volume from the 2-year 24-hour design storm with a type II distribution. Separate curve numbers for pervious and impervious surfaces shall be used to calculate runoff volumes and not composite curve numbers as defined in TR-55. However, when designing appropriate infiltration systems to meet this requirement, no more than 2% of the project site is required as an effective infiltration area.

Trans 401.106(5)(b) (b) Pre-development condition shall be the same as specified in sub. (4) (a).

Trans 401.106(5)(c) (c) Before infiltrating runoff, pretreatment shall be required for parking lot runoff and for runoff from new road construction in commercial, industrial and institutional areas that will enter an infiltration system. The pretreatment shall be designed to protect the infiltration system from clogging prior to scheduled maintenance and to protect groundwater quality in accordance with par. (g). Pretreatment may include, but is not limited to, oil and grease separation, sedimentation, biofiltration, filtration, swales or filter strips.

Trans 401.106 Note Note: To minimize potential groundwater impacts it is desirable to infiltrate the cleanest runoff. To achieve this, a design may propose greater infiltration of runoff from low pollutant sources such as roofs, and less from higher pollutant source areas such as parking lots.

Trans 401.106(5)(d) (d) The following are prohibited from meeting the requirements of this subsection, due to the potential for groundwater contamination:

Trans 401.106(5)(d)1. 1. Areas associated with tier 1 industrial facilities identified in s. NR 216.21 (2) (a), including storage, loading, rooftop and parking.

Trans 401.106(5)(d)2. 2. Storage and loading areas of tier 2 industrial facilities identified in s. NR 216.21 (2) (b).

Trans 401.106 Note Note: Runoff from tier 2 parking and rooftop areas may require pretreatment before infiltration.

Trans 401.106(5)(d)3. 3. Fueling and vehicle maintenance areas.

Trans 401.106(5)(d)4. 4. Areas within 1000 feet upgradient or within 100 feet downgradient of karst features.

Trans 401.106(5)(d)5. 5. Areas with less than 3 feet separation distance from the bottom of the infiltration system to the elevation of seasonal high groundwater or the top of bedrock.

Trans 401.106(5)(d)6. 6. Areas with runoff from industrial, commercial and institutional parking lots and roads and residential arterial roads with less than 5 feet separation distance from the bottom of the infiltration system to the elevation of seasonal high groundwater or the top of bedrock.

Trans 401.106(5)(d)7. 7. Areas within 400 feet of a well serving a community water system as specified in ch. NR 811 or within 100 feet of a well serving a non-community or private water system as specified in ch. NR 812 for runoff infiltrated from commercial, industrial and institutional land uses or regional devices for residential development.

Trans 401.106(5)(d)8. 8. Areas where contaminants of concern, as defined in s. NR 720.03 (2), are present in the soil through which infiltration will occur.

Trans 401.106(5)(d)9. 9. Any area where the soil does not exhibit any of the following characteristics between the bottom of the infiltration system and seasonal high groundwater and top of bedrock:

Trans 401.106(5)(d)9.a. a. At least a 3-foot soil layer with 20 percent fines or greater. In this subdivision paragraph, “percent fines” means the percentage of a given sample of soil, which passes through a #200 sieve.

Trans 401.106(5)(d)9.b. b. At least a 5-foot soil layer with 10 percent fines or greater. In this subdivision paragraph, “percent fines” means the percentage of a given sample of soil, which passes through a #200 sieve.

Trans 401.106(5)(d)9.c. c. Where the soil medium within the infiltration system does not filter pollutants from water at least as effectively as the soils described in subd. 9. a. or b.

Trans 401.106(5)(e) (e) Projects undertaken in the following areas are not required to meet the requirements of this subsection:

Trans 401.106(5)(e)1. 1. Areas where the infiltration rate of the soil is less than 0.6 inches/hour measured at the bottom of the infiltration system.

Trans 401.106(5)(e)2. 2. Parking areas and access roads less than 5,000 square feet for commercial and industrial development.

Trans 401.106(5)(e)3. 3. Areas in which a new project is replacing existing residential, commercial, industrial or institutional land uses or associated roads, or both.

Trans 401.106(5)(e)4. 4. Undeveloped areas of less than 5 acres located within existing urban sewer service areas and surrounded by existing, residential, commercial, industrial or institutional land uses.

Trans 401.106(5)(e)5. 5. Any area during periods when the soil at that area is frozen.

Trans 401.106(5)(e)6. 6. Roads in commercial, industrial and institutional land uses, and arterial residential roads.

Trans 401.106(5)(e)7. 7. Highways.

Trans 401.106(5)(f) (f) Where alternate uses of runoff are employed, such as for toilet flushing, laundry or irrigation, such alternate use shall be given equal credit toward the infiltration volume required by this subsection.

Trans 401.106(5)(g) (g)

Trans 401.106(5)(g)1. 1. Infiltration systems designed in accordance with this subsection shall, to the extent technically and economically feasible, minimize the level of pollutants infiltrating to groundwater and shall maintain compliance with the preventive action limit at a point of standards application as determined under ch. NR 140. However, if specific information indicates that compliance with a preventive action limit is not achievable at that location, then the infiltration system may not be installed or shall be modified to prevent infiltration to the maximum extent practicable.

Trans 401.106(5)(g)2. 2. Notwithstanding subd. 1., the discharge from BMPs shall remain below the enforcement standard at the point of standards application, as determined under ch. NR 140.