Chapter ATCP 48

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.

ATCP 48.30(2) (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.

ATCP 48.30 Note 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.

ATCP 48.30(3) (3) Vegetative cover.

ATCP 48.30(3)(a) (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.

ATCP 48.30 Note 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.

ATCP 48.30(3)(b) (b) A county drainage board may permit land uses in district corridors that provide effective vegetative cover and erosion control.

ATCP 48.30(4) (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.

ATCP 48.30(5) (5) Private drains.

ATCP 48.30(5)(a) (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.

ATCP 48.30(5)(b) (b) If a private drain does not comply with par. (a), the county drainage board may do any of the following:

ATCP 48.30(5)(b)1. 1. Refuse to permit any connection between the private drain and the district drain.

ATCP 48.30(5)(b)2. 2. Order that the private drain be modified to comply with par. (a).

ATCP 48.30(5)(b)3. 3. Order that the private drain be disconnected from the district drain.

ATCP 48.30(5)(b)4. 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).

ATCP 48.30 Note 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.

ATCP 48.30(6) (6) Erosion control practices on drained lands.

ATCP 48.30(6)(a) (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.

ATCP 48.30(6)(b) (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:

ATCP 48.30(6)(b)1. 1. Refuse to permit any connection between the landowner’s private drain and the district drain.

ATCP 48.30(6)(b)2. 2. Order the landowner to comply with par. (a).

ATCP 48.30(6)(b)3. 3. Order that the landowner’s private drain be disconnected from the district drain.

ATCP 48.30(6)(b)4. 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).

ATCP 48.30 Note 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.

ATCP 48.30 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95.

ATCP 48.32 ATCP 48.32 Deposition of materials.

ATCP 48.32(1) (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.

ATCP 48.32 Note Note: The deposition of dredged or excavated material may be subject to additional restrictions under federal, state and local laws.

ATCP 48.32(2) (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.

ATCP 48.32 Note 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.

ATCP 48.32(3) (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.

ATCP 48.32 Note Note: See Figure 1.

ATCP 48.32(4) (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.

ATCP 48.32(5) (5) No dredged or excavated material may be placed in a wetland except in compliance with applicable federal, state and local permit requirements.

ATCP 48.32 Note Note: Figure 1, which is based on ASAE EP 407.01, section 5, illustrates the requirements of this section:

ATCP 48.32 History 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 ATCP 48.33 Structures impeding drainage.

ATCP 48.33(1) (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.

ATCP 48.33 Note 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.

ATCP 48.33(2) (2) Temporary modifications. Subsection (1) does not apply to any of the following which the county drainage board undertakes or approves:

ATCP 48.33(2)(a) (a) A temporary structure or modification that is reasonably necessary to protect the public health, safety or welfare in an emergency.

ATCP 48.33(2)(b) (b) A temporary structure or modification that is necessary for other lawful construction or maintenance operations under this chapter.

ATCP 48.33(2)(c) (c) A temporary structure or modification to provide essential crop irrigation during a drought if all of the following apply:

ATCP 48.33(2)(c)1. 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.

ATCP 48.33 Note Note: A missing word is shown in brackets.

ATCP 48.33(2)(c)2. 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.

ATCP 48.33 Note 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.

ATCP 48.33(2)(c)3. 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.

ATCP 48.33 Note 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.

ATCP 48.33(2)(d) (d) A temporary structure or modification to provide water for cranberry harvest, or for cranberry winter ice cover, if all of the following apply:

ATCP 48.33(2)(d)1. 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.

ATCP 48.33(2)(d)2. 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.

ATCP 48.33(2)(d)3. 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.

ATCP 48.33(2)(d)4. 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.

ATCP 48.33 Note 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.

ATCP 48.33 Note 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.

ATCP 48.33 History History: Cr. Register, August, 1999, No. 524, eff. 9-1-99.

subch. V of ch. ATCP 48 Subchapter V — Construction Projects and Drainage Alterations; Department Approval

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

ATCP 48.34(1) (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:

ATCP 48.34(1)(a) (a) Construct or modify any district drain, or authorize any person to construct or modify a district drain.

ATCP 48.34(1)(b) (b) Install or modify any structure in a district drain, or authorize any person to install or modify any structure in a district drain.

ATCP 48.34(1)(c) (c) Authorize any person to connect a private drain to a district drain.

ATCP 48.34(1)(d) (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.

ATCP 48.34(2) (2) Exemptions. Subsection (1) does not apply to any of the following:

ATCP 48.34(2)(a) (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.

ATCP 48.34(2)(b) (b) Restoration projects.

ATCP 48.34 Note 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).

ATCP 48.34(2)(c) (c) Temporary structures or modifications that a county drainage board installs or approves in compliance with s. ATCP 48.33 (2).

ATCP 48.34 Note 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.

ATCP 48.34 Note 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.

ATCP 48.34 History 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 ATCP 48.36 Applying for approval.

ATCP 48.36(1) (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:

ATCP 48.36(1)(a) (a) District name or number. The name or number, or proposed name or number, of the drainage district.

ATCP 48.36(1)(b) (b) Proposed action. A statement describing the proposed action.

ATCP 48.36(1)(c) (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.

ATCP 48.36(1)(d) (d) Persons requesting action. The persons, if any, who are asking the county drainage board to take the proposed action.

ATCP 48.36(1)(e) (e) Estimated cost. The estimated cost of the proposed action, including any damage awards to landowners who will be adversely affected.

ATCP 48.36(1)(f) (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.