Chapter ATCP 48

ATCP 48.01(10)(b) (b) A county drainage board action that complies with s. ATCP 48.20 (5) or 48.21 (2).

ATCP 48.01 Note Note: A drain is not necessarily a “district drain” merely because it is located on land within a drainage district, or merely because it provides drainage for more than one landowner. In some cases, lands within a drainage district are drained by private drains that empty into district drains. Private drains are not operated or maintained by the county drainage board; nor is there any district corridor surrounding a private drain.

ATCP 48.01(11) (11) “Drain” means any facility, including a ditch, tile, pipe or other facility, for draining water from land. “Drain” includes structures and facilities, such as dams, culverts, pumps, inlet facilities, dikes, dams and levees, that are appurtenant to a drain.

ATCP 48.01(12) (12) “Drainage district” means a drainage district that is subject to ch. 88, Stats., regardless of whether the drainage district was formed under ch. 88, Stats., former ch. 89, Stats., or any other law.

ATCP 48.01(13) (13) “Drainage ditch” or “ditch” means a drain which is in the form of an open surface channel. “Ditch” includes the ditch bed, ditch banks, and any structures and facilities that are appurtenant to the ditch.

ATCP 48.01(13m) (13m) “Grade profile” means a vertical section along the alignment of a drain.

ATCP 48.01 Note Note: See s. ATCP 48.20 (1) (c).

ATCP 48.01(13r) (13r) “Formally established” means established or reestablished by any of the following:

ATCP 48.01(13r)(a) (a) Circuit court order.

ATCP 48.01(13r)(b) (b) County drainage board action that complies with s. ATCP 48.20 or 48.21.

ATCP 48.01(14) (14) “Maintenance costs” means costs for the maintenance and repair of district drains and corridors under subch. IV.

ATCP 48.01(14m) (14m) “Navigable waters” has the meaning given in s. 30.01 (4m), Stats.

ATCP 48.01(15) (15) “Nonagricultural lands” means lands other than agricultural lands, including lands in residential, commercial, industrial and transportation use.

ATCP 48.01(17) (17) “Operating costs” means costs, other than construction, maintenance or restoration costs, that are lawfully incurred by a drainage district.

ATCP 48.01(18) (18) “Parcel” means a tract of land, all of which is held by the same landowner or landowners.

ATCP 48.01(19) (19) “Person” means any individual, partnership, corporation, firm, business trust, estate, trust, association, government, governmental subdivision or agency, or any other legal or commercial entity.

ATCP 48.01(20) (20) “Private drain” means any drain other than a district drain. “Private drain” includes a drain operated by the state or by a county, town, village or city.

ATCP 48.01(21) (21) “Restoration” or “restoration project” means dredging or other operations designed to bring the cross-section, grade profile or alignment of a district drain into closer conformity with the formally established cross-section, grade profile or alignment of that district drain.

ATCP 48.01(22) (22) “Restoration costs” means costs incurred for the restoration of a district drain.

ATCP 48.01(23) (23) “Stable” means resistant to erosion or deformation.

ATCP 48.01(24) (24) “Ten-year peak discharge” or “10-year peak discharge” means the maximum flow of water resulting from a 10-year 24-hour rainfall event.

ATCP 48.01(25) (25) “Wetlands” has the meaning given in s. 23.32, Stats.

ATCP 48.01(26) (26) “Woody vegetation” means plants that contain substantial amounts of secondary xylem. “Woody vegetation” includes shrubs and trees but does not include herbs.

ATCP 48.01 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95; r. (5) and (16), cr. (6m), (13m), (13r), (14m), (26), r. and recr. (9) to (11) and (13), am. (21), Register, August, 1999, No. 524, eff. 9-1-99.

subch. II of ch. ATCP 48 Subchapter II — Assessing Drainage District Costs and Benefits

ATCP 48.02 ATCP 48.02 Assessing costs against lands in a drainage district.

ATCP 48.02(1) (1) General. Pursuant to ch. 88, Stats., and this chapter, a county drainage board may, after public hearing, issue an order levying cost assessments against land in a drainage district to cover costs lawfully incurred by the drainage district, including construction, maintenance, restoration, legal and operating costs.

ATCP 48.02 Note Note: See, e.g., ss. 88.23, 88.35, 88.45, 88.63, 88.70, 88.71, 88.72 and 88.78, Stats.

ATCP 48.02(2) (2) Construction cost assessments; limitations.

ATCP 48.02(2)(a) (a) A county drainage board may not levy cost assessments to construct a new drainage district if the construction cost for that new district will exceed 75% of the total assessed benefits accruing to district landowners from the construction of that new district.

ATCP 48.02 Note Note: See s. 88.36 (6), Stats. Benefits are assessed to landowners according to s. ATCP 48.06.

ATCP 48.02(2)(b) (b) A county drainage board may not levy cost assessments to construct enlarged or supplemental drains unless the drainage board finds that the benefits from the enlarged or supplemental drains will exceed the cost of construction.

ATCP 48.02 Note Note: See s. 88.71 (1m), Stats. Benefits to landowners are assessed according to s. ATCP 48.06.

ATCP 48.02(2)(c) (c) A county drainage board may not, without obtaining the landowner’s consent and sufficient security under s. 88.23 (3), Stats., levy a construction cost assessment against any parcel of land if the amount of the assessment, when added to construction cost assessments previously assessed to that parcel of land, exceeds the last confirmed assessment of benefits for that parcel of land. This paragraph does not limit the assessment of maintenance, restoration or operating costs.

ATCP 48.02 Note Note: See ss. 88.23 (3) and 88.63, Stats. See definitions of “construction costs,” “maintenance costs,” “operating costs,” and “restoration costs” under s. ATCP 48.01 (4), (14), (17) and (22).

ATCP 48.02(3) (3) Allocating cost assessments. Except as provided under sub. (4), a county drainage board shall allocate cost assessments among all of the parcels of land in a drainage district in proportion to the last confirmed assessment of benefits for each parcel. A county drainage board, when levying cost assessments, may allow a reasonable credit to a landowner who provides maintenance services or other “in kind” payments to the drainage district.

ATCP 48.02 Note Note: A county drainage board assesses benefits to land parcels in a drainage district according to s. ATCP 48.06, and allocates cost assessments on the basis of those benefit assessments.

ATCP 48.02(4) (4) Construction costs caused by individual landowner.

ATCP 48.02(4)(a) (a) Except as provided under par. (c), a county drainage board may assess, to a specified parcel of land in a drainage district, the full amount of any construction costs incurred by the drainage district as a direct result of any of the following:

ATCP 48.02(4)(a)1. 1. A request by the landowner for drainage improvements that are solely of benefit to that land.

ATCP 48.02 Note Note: Under s. 88.70, Stats., landowners who seek additional drainage for part of a drainage district may also petition the county drainage board to create a subdistrict for that purpose. The county drainage board may create a subdistrict, and may levy additional assessments against lands in the subdistrict to cover the costs of providing additional drainage for that subdistrict.

ATCP 48.02(4)(a)2. 2. A land use change or other action by the landowner that alters the flow of water into or from a district drain.

ATCP 48.02(4)(a)3. 3. A land use change or other action by the landowner that increases soil erosion or the movement of suspended solids to a district drain.

ATCP 48.02(4)(a)4. 4. A failure by the landowner to maintain a private drain on that land in compliance with s. ATCP 48.30 (5).

ATCP 48.02(4)(a)5. 5. A failure by the landowner to implement necessary erosion control practices on that land, as required by the county drainage board under s. ATCP 48.30 (6).

ATCP 48.02(4)(a)6. 6. The landowner’s extension of a private drain from the assessed land to land outside the district.

ATCP 48.02 Note Note: If a private drain is extended or modified without approval, the county drainage board may also issue an order against the offending landowner or initiate an action for damages under s. 88.92, Stats. Alternatively, a county drainage board may annex the newly drained land under s. 88.78, Stats., and may assess the newly drained land according to s. 88.405, Stat.

ATCP 48.02(4)(b) (b) If, contrary to sub. (2) (c), a construction cost assessment under par. (a) will exceed the last confirmed assessment of benefits for the assessed parcel of land, the county drainage board may order a higher assessment of benefits for that land under s. ATCP 48.06 (2). The assessment of benefits may be increased by the full amount needed to accommodate the construction cost assessment under par. (a).

ATCP 48.02(4)(c) (c) Paragraph (a) does not apply to any of the following:

ATCP 48.02(4)(c)1. 1. Maintenance, restoration or operating costs.

ATCP 48.02(4)(c)2. 2. Construction costs incurred by a drainage district because the county drainage board has failed to comply with this chapter.

ATCP 48.02(5) (5) Assessing costs to state and municipal lands in a drainage district.

ATCP 48.02(5)(a) (a) A county drainage board may levy cost assessments against agricultural lands in a drainage district that are owned by the state of Wisconsin, but may not levy cost assessments against other lands owned by the state.

ATCP 48.02 Note Note: See s. 88.50, Stats.

ATCP 48.02(5)(b) (b) A county drainage board may levy cost assessments against lands in a drainage district that are owned by a county, town, village or city.

ATCP 48.02 Note Note: See s. 88.48, Stats. Under s. 88.01 (11), Stats., ”lands” include public streets and highways.

ATCP 48.02 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95; am. (3), Register, August, 1999, No. 524, eff. 9-1-99.

ATCP 48.04 ATCP 48.04 Recovering costs from lands outside a drainage district.

ATCP 48.04(1) (1) General. Except as provided under subs. (2) and (3), a county drainage board may not levy a cost assessment on behalf of a drainage district against lands located outside the drainage district, but may do any of the following:

ATCP 48.04(1)(a) (a) Refuse to permit the connection of a private drain to a district drain, except as provided under s. 88.93, Stats.

ATCP 48.04 Note Note: See s. 88.92, Stats.

ATCP 48.04(1)(b) (b) Initiate an action at law to recover damages, authorized by law, that are sustained by a drainage district as a result of an action or omission by an owner of land located outside the district.

ATCP 48.04(1)(c) (c) Enter into an agreement with any person under which that person agrees to compensate the drainage district for costs incurred by the drainage district because that person’s private drain is connected to a district drain.

ATCP 48.04(1)(d) (d) Order the annexation, to a drainage district, of lands outside the district that benefit from the operation of any district drain.

ATCP 48.04 Note Note: See s. 88.78, Stats.

ATCP 48.04(2) (2) Cost assessments against another drainage district. A county drainage board may levy cost assessments against a drainage district for the benefit of another drainage district.

ATCP 48.04 Note Note: See ss. 88.49 and 88.69, Stats.

ATCP 48.04(3) (3) Assessments against municipalities for enlargement or maintenance of drains. A county drainage board may levy cost assessments against a municipality with territory upstream from any drain for any costs of enlarging or maintaining the drain that are attributable to increased water flow from land within the municipality.

ATCP 48.04 Note Note: See s. 88.64, Stats.

ATCP 48.04 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95.

ATCP 48.06 ATCP 48.06 Assessing benefits to lands in a drainage district.

ATCP 48.06(1) (1) Initial assessment of benefits. When a drainage district is created, a county drainage board shall assess the benefits accruing from the drainage district to each parcel of land in the drainage district. The county drainage board shall assess benefits according to ch. 88, Stats., and this section. The drainage board’s assessment of benefits shall provide the basis for the drainage board’s allocation of cost assessments under s. ATCP 48.02 (3).

ATCP 48.06 Note Note: See ss. 88.35 and 88.36, Stats.

ATCP 48.06(2) (2) Reassessing benefits.

ATCP 48.06(2)(a) (a) If a county drainage board determines that the last confirmed assessment of benefits for a drainage district no longer reflects the actual current benefits to parcels of land in that drainage district, the county drainage board may, after public hearing, issue an order reassessing benefits. A county drainage board may reassess benefits based on land use changes, the construction of new or modified district drains, the subdivision of lands, or other factors affecting the allocation of benefits to landowners.

ATCP 48.06 Note Note: A reassessment under par. (a) should adjust all assessed benefits in the district, as necessary, to correct any inequities and injustices found by the board. The adjustment need not be proportional to the former confirmed benefits. See s. 88.46 (2), Stats.

ATCP 48.06(2)(b) (b) A county drainage board may reassess benefits under par. (a) on its own motion, or in response to a petition from landowners under s. 88.46, Stats. A reassessment of benefits provides the basis for any subsequent allocation of cost assessments under s. ATCP 48.02 (3).

ATCP 48.06 Note Note: A landowner petition filed with the drainage board under s. 88.46, Stats., must be signed by at least 1/10 of the owners of land in a drainage district, or by the owners of at least 1/10 of the land in a drainage district.

ATCP 48.06(3) (3) Method of assessment or reassessment.

ATCP 48.06(3)(a) (a) Except as provided under par. (b), a county drainage board shall assess benefits to agricultural lands according to s. ATCP 48.08, and shall assess benefits to nonagricultural lands according to s. ATCP 48.10.

ATCP 48.06(3)(b) (b) In lieu of an assessment method specified under s. ATCP 48.08 or 48.10, a county drainage board may adopt an equitable method of assessment which is approved by the owners of at least two-thirds of the assessed lands in the district. The landowners’ approval shall be confirmed in a written agreement signed by the approving landowners.

ATCP 48.06(4) (4) Protected wetlands excluded from assessment. A county drainage board may not assess benefits under this section to wetlands that are legally protected against drainage.

ATCP 48.06 Note Note: For purposes of this subsection, “legally protected” wetlands means wetlands that are all of the following:

ATCP 48.06 Note (1) Located outside the district corridor.

ATCP 48.06 Note (2) Clearly described by means of a survey, map, aerial photograph or other document that indicates the size and location of the wetlands.

ATCP 48.06 Note (3) Formally protected from drainage by at least one of the following means:

ATCP 48.06 Note (a) A deed restriction.

ATCP 48.06 Note (b) Enrollment in the federal wetlands reserve program, the federal water bank program, or another federal, state or county program that clearly protects the wetlands from drainage for a term of at least 10 years.

ATCP 48.06 Note (c) A recorded easement for a term of at least 10 years.