Chapter Trans 401

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.

Trans 401.106(6) (6) Buffer areas.

Trans 401.106(6)(a) (a) In this subsection, “buffer area” means an area of land that commences at the ordinary high-water mark of lakes, streams and rivers, or at the delineated boundary of wetlands, and that is the greatest of the following applicable widths, as measured horizontally from the ordinary high-water mark or delineated wetland boundary:

Trans 401.106(6)(a)1. 1. For outstanding resource waters and exceptional resource waters, and for wetlands in areas of special natural resource interest as specified in s. NR 103.04, 75 feet.

Trans 401.106(6)(a)2. 2. For perennial and intermittent streams identified on a United States geological survey 7.5-minute series topographic map, or a county soil survey map, whichever is more current, 50 feet.

Trans 401.106(6)(a)3. 3. For lakes, 50 feet.

Trans 401.106(6)(a)4. 4. For highly susceptible wetlands, 50 feet. Highly susceptible wetlands include the following types: fens, sedge meadows, bogs, low prairies, conifer swamps, shrub swamps, other forested wetlands, fresh wet meadows, shallow marshes, deep marshes and seasonally flooded basins. Wetland boundary delineation shall be made in accordance with s. NR 103.08 (1m). This paragraph does not apply to wetlands that have been completely filled in accordance with all applicable state and federal regulations. The buffer area for wetlands that have been partially filled in accordance with all applicable state and federal regulations shall be measured from the wetland boundary delineation after fill has been placed.

Trans 401.106(6)(a)5. 5. For less susceptible wetlands, 10 percent of the average wetland width, but no less than 10 feet nor more than 30 feet. Less susceptible wetlands include degraded wetlands dominated by invasive species such as reed canary grass.

Trans 401.106(6)(a)6. 6. For concentrated flow channels with drainage areas greater than 130 acres, 10 feet.

Trans 401.106(6)(ag) (ag) In par. (a) 1., 4. and 5., determinations of the extent of the buffer area adjacent to wetlands shall be made on the basis of the sensitivity and runoff susceptibility of the wetland in accordance with the standards and criteria in s. NR 103.03.

Trans 401.106(6)(am) (am) In this subsection, “buffer area” does not include any area of land adjacent to any stream enclosed within a pipe or culvert, such that runoff cannot enter the enclosure at this location.

Trans 401.106(6)(b) (b)

Trans 401.106(6)(b)1. 1. Beginning with land acquired on or after January 1, 2003 for a transportation facility, no impervious surface that is part of a transportation facility may be constructed within a buffer area, unless the department determines, in consultation with the department of natural resources, that there is no practical alternative. If there is no practical alternative to locating an impervious part of a transportation facility within a buffer area, the transportation facility may be constructed in the buffer area only to the extent the department, in consultation with the department of natural resources, determines is reasonably necessary, and the department shall state in the erosion control plan or in the plan prepared under sub. (2) why it is necessary to construct the transportation facility within a buffer area.

Trans 401.106(6)(b)2. 2. If a transportation facility is constructed within a buffer area, adequate sod or self-sustaining vegetative cover, such as grasses, forbs, sedges and duff layers of leaves and woody debris, of 70% or greater shall be established and maintained in the area that is the width of the buffer area, or the greatest width practical, and throughout the length of the buffer area in which the transportation facility is located. The adequate sod or self-sustaining vegetative cover required under this subdivision shall be sufficient to provide for bank stability, maintenance of fish habitat and filtering of pollutants from upslope overland flow areas under sheet flow conditions. Non-vegetative materials, such as rock riprap, may be employed on the bank as necessary to prevent erosion such as on steep slopes or where high-velocity flows occur.

Trans 401.106 Note Note: Vegetative cover may be measured using the line transect method described in the University of Wisconsin-Extension publication number A3533, titled “Estimating Residue Using the Line Transect Method”. Seeding of non-aggressive vegetative cover is recommended in the buffer areas. Vegetation that is flood and drought tolerant and that has an extensive root system is preferable.

Trans 401.106(6)(b)3. 3. Best management practices such as filter strips, swales or wet detention basins, that are designed to control pollutants from non-point sources may be located in the buffer area.

Trans 401.106(6)(b)4. 4. This subsection does not apply to:

Trans 401.106(6)(b)4.a. a. Areas in which a new project, other than a highway, is replacing existing residential, commercial, industrial or institutional land uses.

Trans 401.106(6)(b)4.b. b. Transportation facilities that cross or access surface waters, such as boat landings, bridges and culverts.

Trans 401.106(6)(b)4.c. c. Transportation facilities from which runoff does not enter the surface water, except to the extent that vegetative ground cover is necessary to maintain bank stability.

Trans 401.106(7) (7) Fueling and vehicle maintenance areas. Fueling and vehicle maintenance areas shall, to the maximum extent practicable, have BMPs designed, installed and maintained to reduce petroleum within runoff, such that the runoff that enters waters of the state contains no visible petroleum sheen.

Trans 401.106(8) (8) Location and regional treatment exclusion.

Trans 401.106(8)(a) (a) BMPs may be located on a project site, or off a project site as part of a regional storm water device, practice or system.

Trans 401.106(8)(b) (b) Runoff within a non-navigable surface water that flows into a BMP, such as a wet detention pond, is not required to meet the performance standards of this section. Permanent BMPs may be located in non-navigable surface waters.

Trans 401.106(8)(c) (c) Except as provided in par. (d), post-construction runoff from a transportation facility first constructed after January 1, 2003 shall meet the requirements of this section before entering a navigable surface water.

Trans 401.106(8)(d) (d) Post-construction runoff from any development within a navigable surface water that flows into a BMP is not required to meet the requirements of this section if all of the following apply:

Trans 401.106(8)(d)1. 1. The BMP was constructed prior to January 1, 2003 and the BMP either received a permit issued under ch. 30, Stats., or the BMP did not require a ch. 30, Stats., permit.

Trans 401.106(8)(d)2. 2. The BMP is designed to treat runoff from upland development that is constructed after the BMP was constructed.

Trans 401.106(8)(e) (e) The discharge of runoff from a BMP, such as a wet detention pond, is subject to this chapter.

Trans 401.106(9) (9) Timing. The BMPs required under this section shall be installed before the project site has undergone final stabilization.

Trans 401.106(10) (10) Swale treatment.

Trans 401.106(10)(a) (a) Except as provided in par. (b), transportation facilities that use swales for runoff conveyance and pollutant removal satisfy all of the requirements of this section, if the swales are designed to the maximum extent practicable to do all of the following:

Trans 401.106(10)(a)1. 1. Be vegetated. However, where appropriate, non-vegetative measures may be employed to prevent erosion or provide for runoff treatment, such as rock riprap stabilization or check dams.

Trans 401.106 Note Note: It is preferred that tall and dense vegetation be maintained within the swale due to its greater effectiveness at enhancing runoff pollutant removal.

Trans 401.106(10)(a)2. 2. Carry runoff through a swale for 200 feet or more in length that is designed with a flow velocity no greater than 1.5 feet per second based on a 2-year 24-hour design storm or on a 2-year design storm with a duration equal to the time of concentration. If a swale of 200 feet in length cannot be designed with a flow velocity of 1.5 feet per second or less, the flow velocity shall be reduced to the maximum extent practicable.

Trans 401.106 Note Note: The swale design may include check dams to slow runoff flows and improve pollutant removal. Transportation facilities with continuous features such as curb and gutter, sidewalks or parking lanes do not comply with the design requirements of this subsection. However, a limited amount of structural measures such as curb and gutter may be allowed as necessary to account for other concerns such as human safety or resource protection.

Trans 401.106(10)(b) (b) Notwithstanding par. (a), the department shall consult with the department of natural resources’ liaison to the department of transportation to determine whether other provisions of this section are necessary to achieve water quality standards. This paragraph applies only to a transportation facility that has an average daily traffic of 2,500 or more, and from which the initial surface water of the state that runoff from the transportation facility directly enters is any of the following:

Trans 401.106(10)(b)1. 1. An outstanding resource water.

Trans 401.106(10)(b)2. 2. An exceptional resource water.

Trans 401.106(10)(b)3. 3. Waters listed in section 303(d) of the federal Clean Water Act, 33 USC 1344, as amended, that are identified as impaired in whole or in part, due to nonpoint source impacts.

Trans 401.106(10)(b)4. 4. Waters for which targeted performance standards are promulgated under s. NR 151.004.

Trans 401.106 History History: CR 02-081: cr. Register December 2002 No. 564, eff. 1-1-03.

Trans 401.107 Trans 401.107 Developed urban area performance standard.

Trans 401.107(1) (1) The department shall develop and implement a storm water management plan to control pollutants from transportation facilities that are owned and operated by the department and located within municipalities regulated under subch. I of ch. NR 216. The plan shall do the following to the maximum extent practicable:

Trans 401.107(1)(a) (a) Beginning not later than March 10, 2008, implement a storm water management plan that is designed to attain at least a 20% reduction in total suspended solids in runoff that enters waters of the state as compared to no storm water management controls.

Trans 401.107(1)(b) (b) Beginning not later than March 10, 2013, implement a storm water management plan that is designed to attain at least a 40% reduction in total suspended solids in runoff that enters waters of the state as compared to no storm water management controls.

Trans 401.107(2) (2) The department shall inform and educate appropriate department staff and any transportation facility maintenance authority contracted by the department of transportation to maintain transportation facilities described in sub. (1) (intro.) regarding nutrient, pesticide, salt and other deicing material and vehicle maintenance management activities in order to prevent runoff pollution of waters of the state.

Trans 401.107 History History: CR 02-081: cr. Register December 2002 No. 564, eff. 1-1-03.

Trans 401.11 Trans 401.11 Enforcement. The project engineer shall enforce this chapter, except that for utility facility projects a representative of the department shall enforce this chapter. This authority shall include ordering the suspension of work on a project, including work at the project site or at any selected sites, for the period of time considered necessary in the interest of public safety or convenience, or for the period of time considered necessary due to the failure of a contractor or utility person to comply with any of the requirements of this chapter, including the failure of a prime contractor or utility person to implement within the prescribed time period a corrective action ordered under s. Trans 401.105. An inspector, by written order delivered to the prime contractor, or by written or verbal order delivered to a utility person, may temporarily suspend work until the project engineer or appropriate department representative is notified and decides all questions at issue.

Trans 401.11 History History: Cr. Register, October, 1994, No. 466, eff. 11-1-94; CR 02-081: am. Register December 2002 No. 564, eff. 1-1-03.

Trans 401.12 Trans 401.12 Liability for prohibited discharge.

Trans 401.12(1) (1) In this section:

Trans 401.12(1)(a) (a) “Contract documents” means the written agreement between the department and the prime contractor that sets forth the obligations of the parties to the contract, including the invitation for bids, proposal, contract form and contract bond, standard specifications, supplemental specifications, interim supplemental specifications, special provisions, addenda, general plans, detailed plans, erosion control plan, ECIP, notice to proceed, permits issued by the department, and any contract change orders and agreements required to complete the construction of the work in an acceptable manner, including authorized extensions and erosion control orders.

Trans 401.12(1)(b) (b) “Progress schedule” means the schedule that establishes completion dates for activities required in the contract documents, and interim completion dates, including revisions and updates to that schedule.

Trans 401.12(2) (2) Except as provided in sub. (3), activity necessitated by a prohibited discharge from a project or selected site shall be considered a department-directed revision to the contract and the department shall pay all costs associated with the discharge in accordance with contract documents.

Trans 401.12(3) (3) 

Trans 401.12(3)(a) (a) The prime contractor shall pay all costs associated with a prohibited discharge from a project site or selected site if any of the following apply:

Trans 401.12(3)(a)1. 1. The prime contractor was not in compliance with the contract documents at the time of the prohibited discharge, and the failure to comply was a substantial contributing factor in causing, failing to prevent, or worsening the discharge. An inspection report prepared under s. Trans 401.10 that identifies non-compliance with the ECIP is not considered non-compliance with an ECIP unless an erosion control order is issued under s. Trans 401.105 and the changes or corrections required by the erosion control order have not been satisfactorily completed.

Trans 401.12(3)(a)2. 2. The performance under the contract documents has fallen behind the progress schedule and the prime contractor has not submitted to the project engineer a revised progress schedule within 5 days after receiving a written request from the project engineer to revise the progress schedule. This subdivision applies only if the failure to comply with the progress schedule was a substantial contributing factor in causing, failing to prevent, or worsening the discharge.

Trans 401.12(3)(b) (b)

Trans 401.12(3)(b)1. 1. This subsection does not apply to any of the following prohibited discharges:

Trans 401.12(3)(b)1.a. a. Discharges occurring after the project has been completed and accepted as final in the manner prescribed in the contract documents.

Trans 401.12(3)(b)1.b. b. Discharges occurring from any portion of work for which the department has granted partial acceptance as provided in the contract documents.

Trans 401.12(3)(b)2. 2. This section does not apply to prohibited discharges from a utility facility project.

Trans 401.12 History History: CR 02-081: cr. Register December 2002 No. 564, eff. 1-1-03.