Wisconsin Legislature: Trans 401.03(3)

Trans 401.01(2)(2) As specified in s. 30.2022 (1m), (1p), and (2), Stats., activities affecting waters of the state that are carried out under the direction and supervision of the department in connection with highway, bridge or other transportation project design, location, construction, reconstruction, maintenance and repair are not subject to the prohibitions or permit or approval requirements specified under ss. 29.601, 30.11, 30.123, 30.19, 30.195, 30.20, 59.692, 61.351, 62.231 or 87.30, Stats., or chs. 281 to 285 or 289 to 299, Stats., except s. 281.48, Stats., if the activity is accomplished in accordance with interdepartmental liaison procedures established by the department of natural resources and the department of transportation for the purpose of minimizing the adverse environmental impact, if any, of the activity.

Trans 401.01 HistoryHistory: Cr. Register, October, 1994, No. 466, eff. 11-1-94; CR 02-081: am. Register December 2002 No. 564, eff. 1-1-03; corrections made under s. 13.92 (4) (b) 7., Stats., Register March 2012 No. 675; correction in (2) made under s. 13.92 (4) (b) 7., Stats., Register December 2018 No. 756.

Trans 401.03Trans 401.03 Applicability.

Trans 401.03(1)(1) This chapter applies to the following actions:

Trans 401.03(1)(a)(a) Any action directed and supervised by the department that relates to an airport, railroad, highway, bridge or other transportation facility construction or maintenance project for which plans are developed and that may cause a discharge to waters of the state, including selected sites.

Trans 401.03(1)(b)(b) Any action by a person that relates to a utility facility project and that may cause a discharge to waters of the state. This chapter applies only to actions within the area described in a permit issued by the department of transportation. Actions outside the area of a permit issued by the department of transportation are subject to regulation by the department of natural resources.

Trans 401.03(1)(c)(c) Construction or reconstruction of a highway designated under s. 86.32, Stats., as a connecting highway, or any improvement, as defined in s. 86.31 (1) (b), Stats., of a connecting highway.

Trans 401.03(2)(2) Notwithstanding sub. (1), this chapter does not apply to any of the following:

Trans 401.03(2)(a)(a) An action directed and supervised by the department that is considered routine maintenance or that addresses an emergency. Routine maintenance activities shall employ best management practices described in s. Trans 401.06 (1), but no other provisions of this chapter apply to routine maintenance.

Trans 401.03(2)(b)(b) An action not directed and supervised by the department that involves the installation of a driveway by a person for residential use or agricultural use, as defined in s. 91.01 (1), Stats.

Trans 401.03(2)(c)(c) An action taken under a bid first advertised before December 1, 2002, or, for projects for which no bid is advertised, taken under a contract signed before January 1, 2003.

Trans 401.03(3)(3) Notwithstanding sub. (1), post-construction performance standards under s. Trans 401.106 do not apply to any of the following:

Trans 401.03(3)(a)(a) An action for which a final environmental impact statement is approved before January 1, 2003.

Trans 401.03(3)(b)(b) An action for which a finding of no significant impact is made under ch. Trans 400 before January 1, 2003.

Trans 401.03(3)(c)(c) An action that is documented in an environmental report, as defined in s. Trans 400.04 (10), completed before January 1, 2003, that fit the criteria or conditions for approval as a categorical exclusion in 23 CFR 771.117, April 1, 2000, or has met the review criteria of paragraph 23.a. of chapter 3 of federal aviation administration order 5050.4A issued on October 8, 1985.

Trans 401.03(3)(d)(d) A project site that has undergone final stabilization within 2 years after January 1, 2003.

Trans 401.03(3)(e)(e) Reconditioning or resurfacing, as defined in s. 84.013 (1) (b) and (d), Stats., of a highway.

Trans 401.03(3)(f)(f) Minor reconstruction of a highway. In this paragraph, “minor reconstruction” means reconstruction, as defined in s. 84.013 (1) (c), Stats., of any length of highway that does not widen the roadbed by more than 100 feet, and for which the total length of relocated highway and any added through travel lane does not exceed 1.50 miles. Two or more adjoining added through travel lanes shall be counted as one added through travel lane for purposes of determining the length of the added through travel lanes. A relocation of a highway that includes added through travel lanes shall be counted as one unit for purposes of determining the length of the relocation and added through travel lanes. Pavement widening for purposes of adding a passing lane is not an added through travel lane. Notwithstanding the exemption under this paragraph, if minor reconstruction causes a highway to lie within a buffer area, as defined in s. Trans 401.106 (6) (a), or increases the area of the roadway that lies within a buffer area, the requirements under s. Trans 401.106 (6) apply to that buffer area.

Trans 401.03(3)(g)(g) Construction of a transportation facility that replaces an existing transportation facility, or other existing residential, commercial, industrial or institutional land uses, if there is no increase in exposed parking lots or roads.

Trans 401.03(3)(h)(h) A transportation facility with less than 10% connected imperviousness based on complete development of the transportation facility, provided the cumulative area of all parking lots and rooftops is less than one acre.

Trans 401.03 NoteNote: Projects that consist of only the construction of bicycle paths or pedestrian trails generally meet this exception as these facilities have minimal connected imperviousness.

Trans 401.03(3)(i)(i) Construction of a transportation facility that has less than one acre of land disturbing construction activity.

Trans 401.03 NoteNote: Actions directed and supervised by the department that are regulated by and comply with this chapter and that are subject to the interdepartmental liaison cooperative agreement with the department of natural resources are considered to be in compliance with s. 283.33, Stats., and the requirements of ch. NR 216.

Trans 401.03 HistoryHistory: Cr. Register, October, 1994, No. 466, eff. 11-1-94; CR 02-081: am. (1) and (2), cr. (1) (c), (2) (c) and (3) Register December 2002 No. 564, eff. 1-1-03.

Trans 401.04Trans 401.04 Definitions. In this chapter:

Trans 401.04(1)(1) “Best management practices” or “BMPs” means structural or nonstructural measures, practices, techniques or devices employed to avoid or minimize soil, sediment and pollutant movement, or to manage runoff.

Trans 401.04 NoteNote: The Wisconsin Department of Transportation specifications and manuals listed below identify best management practices that apply under this chapter. However, best management practices other than those listed may be applicable to any given situation.

Trans 401.04 Note1. Sections 107.18, 107.19, 107.20, 628 and 631 of the Standard Specifications for Road and Bridge Construction of the Wisconsin Department of Transportation. Copies of these sections may be obtained from the Wisconsin Department of Transportation, Office of Construction, P. O. Box 7916, Madison, Wisconsin 53707-7916.

Trans 401.04 Note2. Sections P-151, P-152, P-158, P-159, Division VII and Division VIII of the Standard Specifications for Airport Construction of the State of Wisconsin, Department of Transportation. Copies of these sections and divisions may be obtained from the Wisconsin Department of Transportation, Bureau of Aeronautics, P. O. Box 7914, Madison, Wisconsin 53707-7914.

Trans 401.04 Note3. Chapters 10 and 13 of the Facilities Development Manual of the Wisconsin Department of Transportation, Division of Transportation Infrastructure Development. Copies of these chapters may be obtained from the Wisconsin Department of Transportation, Division of Transportation Infrastructure Development, P. O. Box 7965, Madison, Wisconsin 53707-7965.

Trans 401.04 Note4. Chapters 2 and 10 of the Highways Construction and Materials Manual of the Wisconsin Department of Transportation, Division of Transportation Infrastructure Development. Copies of these chapters may be obtained from the Wisconsin Department of Transportation, Division of Transportation Infrastructure Development, P. O. Box 7965, Madison, Wisconsin 53707-7965.

Trans 401.04(2)(2) “Borrow site” means an area outside of a project site from which stone, soil, sand or gravel is excavated for use at the project site, except the term does not include commercial pits.

Trans 401.04(3)(3) “Construction” or “maintenance” includes clearing and grubbing, demolition, excavating, pit trench dewatering, filling or grading.

Trans 401.04(4)(4) “Contractor” means a prime contractor and any subcontractor of the prime contractor.

Trans 401.04(5)(5) “Corrective action” means action that is taken in response to a discharge, or to the threat of a discharge, to minimize or prevent the discharge. “Corrective action” may include preventative maintenance of existing best management practices, or the implementation of new or different best management practices.

Trans 401.04(6)(6) “Department” means the Wisconsin department of transportation.

Trans 401.04(7)(7) “Design storm” means a hypothetical discrete rainstorm characterized by a specific duration, temporal distribution, rainfall intensity, return frequency and total depth of rainfall.

Trans 401.04(7m)(7m) “Directed and supervised by the department” means any of the following:

Trans 401.04(7m)(a)(a) An activity undertaken under a bid let by the department, unless the department let the bid at the request of a city, village, town or county to assist with a transportation facility that is or will be under the jurisdiction of that city, village, town or county, and the bid specifies either that this chapter does not apply or that the activity is subject to regulation by the department of natural resources.

Trans 401.04(7m)(b)(b) An activity undertaken under a contract to which the department is a party, unless the contract specifies that this chapter does not apply and the department did not let the bid for that activity.

Trans 401.04(7m)(c)(c) An activity undertaken using funds awarded by the department under a grant agreement that specifies that the department is administering the project or that this chapter applies.

Trans 401.04(7m)(d)(d) The construction or maintenance of any highway or portion of a highway located on a federal-aid system, unless no state or federal funds are used, or unless all state and federal funds used are awarded under a grant agreement that does not specify that the department is directing and supervising, or administering, the project.

Trans 401.04 NoteNote: The Department of Transportation sometimes engages in the activities described in this subsection to assist local units of government on local transportation facility construction projects. Providing such assistance, without more, does not mean the Department directs and supervises that local project, and the project does not become subject to this chapter because of that assistance. Activities not directed and supervised by the Department are subject to erosion control and stormwater management regulation by the Department of Natural Resources.

Trans 401.04(8)(8) “Discharge” means the movement of pollutants or sediments from a project site or selected site as a result of erosion or runoff.

Trans 401.04(9)(9) “Disturbed area” means an area on a project site or selected site where land disturbing activity has occurred.

Trans 401.04(10)(10) “Erosion” means the process by which the land’s surface is worn away by the action of wind, water, ice or gravity.

Trans 401.04(12)(12) “Erosion control implementation plan” or “ECIP” means the erosion control implementation plan required under s. Trans 401.08.

Trans 401.04(13)(13) “Erosion control plan” means the erosion control plan required under s. Trans 401.07.

Trans 401.04(13m)(13m) “Highway” has the meaning given in s. 340.01 (22), Stats.

Trans 401.04(14)(14) “Infiltration system” means a device or practice that is designed specifically to encourage the entry and movement of surface water into or through underlying soil. “Infiltration system” does not include natural entry and movement of surface water into or through underlying soil in pervious areas such as lawns. “Infiltration system” does not include minimal entry and movement of surface water into or through underlying soil from practices such as swales or roadside channels that are designed for conveyance and pollutant removal only.

Trans 401.04(15)(15) “Inspector” means an employee or authorized representative of the department assigned to make inspections of work or materials.

Trans 401.04(15m)(15m) “Land disturbing activity” means any manmade alteration of the land surface resulting in a change in the topography or existing vegetative or non-vegetative soil cover, that may result in increased runoff and lead to an increase in soil erosion and movement of sediment into waters of the state. “Land disturbing activity” includes clearing and grubbing, demolition, excavating, pit trench dewatering, and filling and grading activities, but does not include routine maintenance. “Land disturbing activity” does not include activities, such as tree trimming or brush removal, that involve only the cutting or removing of vegetation above the ground by a utility person.

Trans 401.04(16)(16) “Material disposal site” means an area that is outside of a project site, is used for the lawful disposal of surplus materials or materials unsuitable for use within the project site, and is under the direct control of the contractor. “Material disposal site” does not include a private landfill that is not managed by the contractor or a municipally owned landfill.

Trans 401.04(17)(17) “Permanent best management practices” means those best management practices that are intended to remain in place after final stabilization.

Trans 401.04(18)(18) “Person” means an individual, institution, business, corporation, limited liability company, partnership, association, joint venture, governmental subdivision or agency, or any other legal entity, except the term does not include the department, or its officers or employees acting in their official capacities.

Trans 401.04(19)(19) “Pollutant” has the meaning given in s. 283.01 (13), Stats.

Trans 401.04(20)(20) “Pre-construction conference” means a conference scheduled between the department, prime contractor and other invited persons prior to the commencement of construction or maintenance activity at a site.

Trans 401.04(21)(21) “Prime contractor” means a person authorized or awarded a contract to perform, directly or using subcontractors, all the work of a project directed and supervised by the department.

Trans 401.04(22)(22) “Project” means an action covered by this chapter.

Trans 401.04(23)(23) “Project diary” means a diary of a project’s activities kept by a project engineer or inspector, including all inspection report forms and any erosion control inspection forms completed under s. Trans 401.10 (4).

Trans 401.04(24)(24) “Project engineer” means an employee or authorized representative of the department who is in charge of the engineering details and the field administration of a project.

Trans 401.04(25)(25) “Project site” means the area of a project on which land disturbing activity occurs, excluding borrow sites and material disposal sites.

Trans 401.04(25m)(25m) “Routine maintenance” means an activity that involves less than 5 acres of land disturbance and that is performed to maintain the original line and grade, hydraulic capacity, or original purpose of an existing transportation facility.

Trans 401.04(26)(26) “Runoff” means storm water or precipitation, including rain, snow or ice melt, that moves on land surface via sheet or channeled flow.

Trans 401.04(27)(27) “Runoff coefficient” means the fraction of total precipitation that will leave a project site or selected site as runoff based on land use, soil and drainage characteristics.

Trans 401.04(28)(28) “Section 404 permit” means a permit issued by the U.S. army corps of engineers under 33 USC 1344 of the clean water act, as amended.

Trans 401.04(29)(29) “Sediment” means settleable solid material that is transported by runoff, suspended within runoff or deposited by runoff away from its original location.

Trans 401.04(30)(30) “Sedimentation” means the act or process of depositing sediment.

Trans 401.04(31)(31) “Selected site” means any borrow site or material disposal site used exclusively for projects directed and supervised by the department. A site shall be considered to be used exclusively for department projects even if material excavated from the site are sold directly to consumers as incidental sales.

Trans 401.04(33)(33) “Stabilize” or “stabilization” means using best management practices to avoid or minimize soil, sediment and pollutant movement onto or off a site.

Trans 401.04(34)(34) “Suspension of work” means the partial or complete suspension of the operations and work of a project, including the operations and work at the project site or at selected sites, if any.