Chapter ATCP 48

ATCP 48.21(4)(a)2. 2. Obtains the department’s approval under s. ATCP 48.34.

ATCP 48.21 Note Note: A “formally established” alignment is one established by circuit court order, or by county drainage board action under s. ATCP 48.20 or this section. See s. ATCP 48.01 (13r). Under s. ATCP 48.24, a district corridor is required for a “district ditch” but not for other district drains.

ATCP 48.21(4)(b) (b) Whenever a county drainage board changes the formally established alignment of a district drain, the county drainage board shall file a record of the change with the department, the county zoning administrator and the county register of deeds. The record shall specifically describe the change, and shall include a new map of the drainage district if the change affects a map previously filed under s. ATCP 48.20 or this section.

ATCP 48.21(5) (5) Changing a formally established grade profile.

ATCP 48.21(5)(a) (a) A county drainage board may not change the formally established grade profile of a district drain unless the county drainage board does all of the following:

ATCP 48.21(5)(a)1. 1. Provides, to every landowner in the drainage district whose access to drainage will be affected by the proposed change, a written notice that clearly describes the proposed change and gives the landowner at least 30 days to object. A change 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.

ATCP 48.21(5)(a)2. 2. Resolves, to the satisfaction of the objecting landowner, every timely objection filed with the county drainage board by a landowner who is entitled to notice under subd. 1.

ATCP 48.21(5)(a)3. 3. Obtains the department’s approval for the proposed change under s. ATCP 48.34.

ATCP 48.21 Note Note: A “formally established” grade profile is a grade profile established by circuit court order, or by county drainage board action under s. ATCP 48.20 or this section. See s. ATCP 48.01 (13r). The department may not approve a change to a formally established grade profile if any objection by an affected landowner under par. (a) 1. remains unresolved. See ss. ATCP 48.34, 48.36 and 48.38.

ATCP 48.21(5)(b) (b) Whenever a county drainage board changes the formally established grade profile of a district drain with the department’s approval, the county drainage board shall file a record of the change with the department, the county zoning administrator and the county register of deeds. The record shall clearly describe the change, if any, to each element of the grade profile under s. ATCP 48.20 (1) (c).

ATCP 48.21 History History: Cr. Register, August, 1999, No. 524, eff. 9-1-99.

ATCP 48.22 ATCP 48.22 Construction and maintenance; general.

ATCP 48.22(1) (1) Requirement. A county drainage board shall design, construct, maintain, repair and restore district drains and corridors in compliance with this subchapter.

ATCP 48.22(2) (2) Compliance plan. A county drainage board shall file with the department, by December 31, 2001, a plan showing how the county drainage board intends to bring district drains and corridors under its jurisdiction into compliance with this subchapter. The county drainage board shall file a separate plan for each drainage district in the county. The plan shall include all of the following:

ATCP 48.22(2)(a) (a) A professionally drawn map of the drainage district, showing all district drains. The map shall clearly identify the relevant features of the drainage district, including municipal and other connections to district drains, significant structures such as dams, and the location of existing spoil deposits.

ATCP 48.22(2)(b) (b) A restoration plan that identifies all of the following:

ATCP 48.22(2)(b)1. 1. Drain segments that no longer conform to formally established cross-sections, grade profiles or alignments.

ATCP 48.22(2)(b)2. 2. A priority sequence and schedule for restoring noncomplying drains to their formally established cross-sections, grade profiles and alignments.

ATCP 48.22(2)(b)3. 3. An estimate of the amount of material to be removed from each drain scheduled for restoration.

ATCP 48.22(2)(b)4. 4. The intended disposition of removed materials, including the locations at which the materials will be deposited.

ATCP 48.22(2)(b)5. 5. The projected costs of restoration, and a plan for financing those costs.

ATCP 48.22(2)(c) (c) A repair and maintenance plan that includes all of the following:

ATCP 48.22(2)(c)1. 1. A plan for routine maintenance of drainage structures.

ATCP 48.22(2)(c)2. 2. A plan for maintaining district corridors and controlling woody vegetation in those corridors.

ATCP 48.22(2)(c)3. 3. A plan for special repair and maintenance projects, if any.

ATCP 48.22(2)(c)4. 4. The projected costs of repair and maintenance, and a plan for financing those costs.

ATCP 48.22(2)(d) (d) A plan for controlling soil erosion and runoff in the drainage district. The plan shall include the estimated cost to implement the plan.

ATCP 48.22(2m) (2m) Hearing on compliance plan.

ATCP 48.22(2m)(a) (a) Before a county drainage board files a compliance plan with the department under sub. (2), the county drainage board shall do all of the following:

ATCP 48.22(2m)(a)1. 1. Provide every known landowner in the drainage district with notice by mail announcing a public meeting at which a copy of the plan shall be available for inspection. The county drainage board shall also publish a class 2 notice of the meeting under ch. 985, Stats.

ATCP 48.22(2m)(a)2. 2. Give landowners at least 30 days after the public meeting to file, with the county drainage board, written objections to the compliance plan.

ATCP 48.22(2m)(b) (b) Whenever a county drainage board files a compliance plan with the department under sub. (2), the county drainage board shall also file all of the following:

ATCP 48.22(2m)(b)1. 1. Documentation showing that the county drainage board has complied with par. (a).

ATCP 48.22(2m)(b)2. 2. Notice of any unresolved objections filed under par. (a) 2., and the county drainage board’s position on those unresolved objections.

ATCP 48.22(2r) (2r) Compliance deadline. A county drainage board shall bring every drainage district into compliance with this subchapter by December 31, 2004 unless the department, in response to unusual or unavoidable circumstances, extends the compliance deadline in writing.

ATCP 48.22(3) (3) Employees and agents. A county drainage board may employ or contract with qualified persons to survey, design, construct, maintain, repair or restore district drains and corridors on behalf of the county drainage board.

ATCP 48.22 Note Note: Under s. ATCP 48.36 (1) (f), a construction project must be designed by a qualified engineer. Sections 88.20 and 946.13, Stats., prohibit conflicts of interest by members of a drainage board. Under s. 88.145, Stats., a county drainage board may authorize any owner of land in a drainage district to undertake work approved by the drainage board. The liability of a landowner who does work with the approval of the county drainage board is limited by ss. 88.145, 893.80 and 895.46 (8), Stats.

ATCP 48.22(4) (4) Authority to enter lands. A member of a county drainage board or an employee or other authorized agent of a county drainage board may do any of the following:

ATCP 48.22(4)(a) (a) Enter onto any lands in a drainage district in order to survey, design, construct, maintain, repair or restore a district drain or corridor.

ATCP 48.22(4)(b) (b) Perform survey, construction, maintenance, repair and restoration operations on a district drain or corridor, including operations requiring excavation or modification of private land.

ATCP 48.22 Note Note: See s. 88.13, Stats.

ATCP 48.22(5) (5) Notice to landowner. Before a county drainage board or its agent performs any survey, design, construction, maintenance, repair or restoration operations on private land, other than in a district corridor under s. ATCP 48.24, the county drainage board or its agent shall notify the landowner. Notice may be given in person, by telephone, by mail or, if the landowner is not available, by posting notice at a conspicuous location at an entrance to the land. Notice under this section is adequate if given at any time prior to entry.

ATCP 48.22(6) (6) Construction plans. No county drainage board or its agent may, without the department’s written approval, proceed with any construction project or other action under s. ATCP 48.34 for which that approval is required. No county drainage board or its agent may, without the department’s written approval, deviate from the project plan and specifications approved by the department.

ATCP 48.22(7) (7) Other agencies; approval. Before starting any construction, maintenance, repair or restoration operation under this chapter, a county drainage board shall obtain from the appropriate government agencies all permits and approvals required for that operation.

ATCP 48.22 Note Note: Certain construction, maintenance, repair and restoration operations in a drainage district may require permits or approvals from the army corps of engineers; the Wisconsin department of natural resources; the Wisconsin department of agriculture, trade and consumer protection or local zoning authorities.

ATCP 48.22 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95; r. and recr. (2), cr. (2m) and (2r), am. (6), Register, August, 1999, No. 524, eff. 9-1-99.

ATCP 48.24 ATCP 48.24 District corridors.

ATCP 48.24(1) (1) Corridor required. A county drainage board shall establish and maintain a district corridor around every district ditch. The county drainage board shall maintain the district corridor, in compliance with this subchapter, for all of the following purposes:

ATCP 48.24(1)(a) (a) To provide effective access for the county drainage board and its agents, and for their vehicles and equipment, over the entire length of the district ditch.

ATCP 48.24(1)(b) (b) To provide a buffer against land uses which may adversely affect water quality in the district ditch.

ATCP 48.24(2) (2) Width of corridor. A district corridor shall extend for 20 feet from the top of the ditch bank on each side of a district ditch. A county drainage board may, by giving specific notice to landowners, establish a wider corridor if necessary to permit vehicle access or to protect water quality in the district ditch.

ATCP 48.24 Note Note: Under s. ATCP 48.28, a county drainage board is required to control the growth of woody vegetation in a district corridor, except that a county drainage board may allow the growth of woody vegetation in portions of a district corridor if it does not interfere with effective access to district drains.

ATCP 48.24(3) (3) Access to corridor. Except as provided under sub. (4), a member of a county drainage board or an employee or other authorized agent of a county drainage board may, without prior notice to a landowner, do any of the following:

ATCP 48.24(3)(a) (a) Enter a district corridor, and bring vehicles and equipment into a district corridor, for the purpose of inspecting, surveying, maintaining, repairing, restoring or improving a district drain or corridor.

ATCP 48.24(3)(b) (b) Perform operations in a district corridor related to the maintenance, repair, restoration or improvement of a district drain or corridor, including cutting, mowing, pesticide application, dredging, excavation and other operations.

ATCP 48.24(4) (4) Notice of activities in the corridor. Before a county drainage board or its agent does either of the following in a district corridor, the county drainage board or its agent shall notify the landowner by one of the methods specified under s. ATCP 48.22 (5):

ATCP 48.24(4)(a) (a) Cutting trees that are more than 6 inches in diameter measured at breast height.

ATCP 48.24(4)(b) (b) Excavating or depositing materials in the district corridor.

ATCP 48.24(5) (5) Row cropping and obstructions in district corridor.

ATCP 48.24(5)(a) (a) No person may do any of the following without written permission from the county drainage board:

ATCP 48.24(5)(a)1. 1. Engage in row cropping in a district corridor.

ATCP 48.24(5)(a)2. 2. Place in a district corridor any building or other obstruction that interferes with the county drainage board’s ability to inspect, restore and maintain the district ditch and corridor.

ATCP 48.24(5)(b) (b) A county drainage board may give a person written permission to engage in activities under par. (a), subject to conditions or limitations which the drainage board specifies in writing.

ATCP 48.24 Note Note: In deciding whether to authorize row cropping in a district corridor, a county drainage board should consider whether that row cropping will increase maintenance requirements, soil erosion, or movement of suspended solids to district drains. It may consider relevant factors such as the type of row cropping and tillage proposed, the topography of the district corridor, and the type, quality and character of the soil and subsoil in the district corridor.

ATCP 48.24(5)(c) (c) A person who engages in row cropping or places any obstruction in a district corridor under par. (a), with or without drainage board permission, waives any claim for damages to those crops or obstructions that may be caused by county drainage board activities authorized under ch. 88, Stats., or this chapter.

ATCP 48.24(5)(d) (d) This subsection does not require a landowner to remove any building or fixture constructed or installed in a district corridor prior to September 1, 1999. The owner of the preexisting building or fixture waives any claim for damages to that building or fixture that may be caused by county drainage board activities authorized under ch. 88, Stats., or this chapter.

ATCP 48.24 Note Note: See s. ATCP 48.28 related to the control of woody vegetation in a district corridor.

ATCP 48.24 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95; r. and recr. (5), Register, August, 1999, No. 524, eff. 9-1-99.

ATCP 48.26 ATCP 48.26 District drains; design, construction and maintenance.

ATCP 48.26(1) (1) Drainage capacity. Every district drain constructed after July 1, 1995 shall be designed and constructed so that it is capable of removing the volume of water from a 10-year 24-hour rainfall event within 48 hours after that rainfall event. For each county, a 10-year 24-hour rainfall event is the amount of rain shown in table 1 falling in 24 hours.

ATCP 48.26(2) (2) Ditch stability.

ATCP 48.26(2)(a) (a) A county drainage board shall design and construct every district ditch, including the ditch bed, banks, and related structures such as culverts, bridges and inlets, so that the ditch will remain stable when subjected to a 10-year peak discharge under sub. (1). A district ditch is not required to contain the entire volume of water from the peak discharge. The stability standard under this paragraph does not apply to a district ditch or related structure constructed prior to July 1, 1995.

ATCP 48.26(2)(b) (b) A county drainage board shall repair and maintain every district ditch, as necessary, to restore and maintain the stability of that ditch.

ATCP 48.26(3) (3) District drains must conform to specifications. A county drainage board shall restore, repair, maintain and, if necessary, modify district drains so that each district drain conforms to the specifications formally established for that drain by court order, or by county drainage board action under s. ATCP 48.20 or 48.21. If the county drainage board levies any cost assessment for work needed to conform a drain to formally established specifications, it shall levy the assessment according to subchapter II.

ATCP 48.26(4) (4) Removing obstructions. A county drainage board shall remove sediment dams, windfalls, deadfalls, sand bars, beaver dams and other obstructions from district ditches. The county drainage board shall remove the obstructions annually, or more frequently as necessary. The county drainage board shall also remove submerged vegetation from district ditches as necessary.

ATCP 48.26(5) (5) Restoration projects; notice to department. A county drainage board shall notify the department in writing before the county drainage board initiates any restoration project in a drainage district which involves the removal of more than 3,000 cubic yards of material.

ATCP 48.26 Note Note: A county drainage board does not need department approval for a restoration project, but may need a dredging permit from the Wisconsin department of natural resources under s. 30.20 or s. 88.31, Stats. A county drainage board may not, under the guise of a “restoration project,” dredge below the bottom elevation specified as part of the formally established grade profile. See definition of “restoration project” under s. ATCP 48.01 (21).

ATCP 48.26 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95; r. and recr. (3), cr. (5), Register, August, 1999, No. 524, eff. 9-1-99.

ATCP 48.28 ATCP 48.28 Controlling woody vegetation.

ATCP 48.28(1) (1) Requirement. Except as provided under sub. (2), a county drainage board shall control the growth of woody vegetation in district ditches and corridors to ensure effective drainage and effective access for inspection, maintenance and repair. A county drainage board may control woody vegetation by one or more of the methods specified under sub. (3).

ATCP 48.28(2) (2) Exception. A county drainage board may allow the growth of woody vegetation in portions of a district corridor, provided that the woody vegetation does not interfere with effective access to district drains. A county drainage board, when deciding whether to allow the growth of woody vegetation, shall consider how the woody vegetation may affect the cost of maintaining and cleaning district drains. Any portions of a corridor left in woody vegetation shall be maintained under a resource conservation plan developed in cooperation with the county land conservation department or the United States natural resources conservation service.

ATCP 48.28 Note Note: In some parts of a district corridor, woody vegetation may have important value as wildlife habitat, or for controlling soil erosion. Ordinarily, ditches are not subject to local shoreland or wetland zoning ordinances. However, in a small number of situations, where ditches are considered natural navigable streams, local ordinances may limit the cutting of woody vegetation. See s. 281.31 (2m), Stats., and chs. NR 115 and 117.

ATCP 48.28(3) (3) Methods for controlling woody vegetation. A county drainage board may use any of the following methods to control the growth of woody vegetation in a district ditch or corridor:

ATCP 48.28(3)(a) (a) Mowing. A county drainage board may mow a district ditch or corridor to control the growth of woody vegetation. Mowing may include hand cutting where necessary. If only mowing is used to control the growth of woody vegetation in a district ditch or corridor, the county drainage board shall mow the ditch or corridor at least once every 5 years, and more often if necessary.

ATCP 48.28(3)(b) (b) Pesticide applications. A county drainage board may apply pesticides to control the growth of woody vegetation in a district ditch or corridor. Pesticides shall be applied according to label directions, and in compliance with ch. ATCP 29 and other applicable state and federal laws and regulations.

ATCP 48.28(3)(c) (c) Burning. Subject to applicable local regulations, a county drainage board may use controlled burning to control the growth of woody vegetation in a district ditch or corridor.

ATCP 48.28 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95.

ATCP 48.30 ATCP 48.30 Controlling soil erosion and runoff.

ATCP 48.30(1) (1) General. A county drainage board shall take appropriate measures to minimize soil erosion and the movement of suspended solids into district drains. A county drainage board may monitor water in district drains to determine the amounts and sources of suspended solids in the water.