Chapter ATCP 48

ATCP 48.20(5)(b) (b) Documents that the drain has, historically, been operated and maintained as a district drain.

ATCP 48.20(5)(c) (c) Complies with s. ATCP 48.21 (2).

ATCP 48.20 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 48.20(6) (6) Drain cross-section, grade profile and alignment.

ATCP 48.20(6)(a) (a) Except as provided in par. (b) or (c), the county drainage board shall adopt under sub. (1) the cross-sections, grade profiles and alignments last confirmed by the circuit court. If a county drainage board is unable to locate court specifications for a drain cross-section, grade profile or alignment, the drainage board may reconstruct those specifications based on physical evidence of historical conditions in the drainage district.

ATCP 48.20 Note Note: For example, a county drainage board may be able to document a historical grade profile by physical evidence including soil conditions and invert elevations of historical structures along the alignment of the district drain.

ATCP 48.20(6)(b) (b) A cross-section, grade profile or alignment adopted under sub. (1) shall incorporate changes which the county drainage board, acting within its statutory authority, approved prior to September 1, 1999, except that a grade profile adopted under sub. (1) may not incorporate a change which the drainage board purported to approve prior to September 1, 1999, over the unresolved objection of a landowner whose access to drainage was affected by that change. A grade profile 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 48.20(6)(c) (c) A county drainage board may proceed under s. ATCP 48.21 to change or clarify the cross-section, grade profile or alignment of a district drain.

ATCP 48.20 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95; r. and recr. Register, August, 1999, No. 524, eff. 9-1-99; corrections in (1) (c) 2., 3. made under s. 13.92 (4) (b) 7., Stats., Register April 2013 No. 688.

ATCP 48.21 ATCP 48.21 Changing drainage district specifications.

ATCP 48.21(1) (1) Changing a drainage district boundary.

ATCP 48.21(1)(a) (a) A county drainage board may not change any drainage district boundary except by applicable procedures specified under ss. 88.77 to 88.80, Stats.

ATCP 48.21 Note Note: If the existing boundary of a drainage district is not clearly documented by a circuit court order, or by a county drainage board order under ss. 88.77 to 88.80, Stats., the county drainage board should clarify that boundary by appropriate procedures under ss. 88.77 to 88.80, Stats.

ATCP 48.21(1)(b) (b) Whenever a county drainage board changes any drainage district boundary pursuant to ss. 88.77 to 88.80, Stats., 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 include all of the following:

ATCP 48.21(1)(b)1. 1. A revised map of the drainage district, showing the new boundary.

ATCP 48.21(1)(b)2. 2. Proof of compliance with par. (a).

ATCP 48.21(2) (2) Designating private drain as district drain.

ATCP 48.21(2)(a) (a) A county drainage board may not designate a private drain as a district drain unless the county drainage board does at least one of the following:

ATCP 48.21(2)(a)1. 1. Obtains the written consent of every landowner who owns or holds an easement to land on which the drain is located.

ATCP 48.21(2)(a)2. 2. Purchases or condemns, pursuant to s. 88.21 (6), Stats., and ch. 32, Stats., all of the land newly required for that district drain and for any district corridor required for that drain under s. ATCP 48.24.

ATCP 48.21(2)(a)3. 3. Properly designates the drain as a district drain in a proceeding under s. 88.73 or 88.77 to 88.80, Stats.

ATCP 48.21(2)(b) (b) Whenever a county drainage board designates a private drain as a district drain, the county drainage board shall file a record of that designation with the department, the county zoning administrator and the county register of deeds. The record shall include all of the following:

ATCP 48.21(2)(b)1. 1. A revised map of the drainage district, showing the designated drain and any district corridor required under s. ATCP 48.24 for that designated drain.

ATCP 48.21(2)(b)2. 2. Proof of compliance with par. (a).

ATCP 48.21 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. Under s. ATCP 48.24, a district corridor is required for a “district ditch” but not for other district drains.

ATCP 48.21(3) (3) Changing a formally established cross-section.

ATCP 48.21(3)(a) (a) A county drainage board may not change the formally established cross-section of a district drain without the department’s approval under s. ATCP 48.34.

ATCP 48.21 Note Note: A “formally established” cross-section 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).

ATCP 48.21(3)(b) (b) Whenever a county drainage board changes the formally established cross-section of a district drain with department approval, the county drainage board shall file a clear record and description of the change with the department, the county zoning administrator and the county register of deeds.

ATCP 48.21(4) (4) Changing a formally established alignment.

ATCP 48.21(4)(a) (a) A county drainage board may not change the formally established alignment of a district drain unless the county drainage board does all of the following:

ATCP 48.21(4)(a)1. 1. Obtains the written consent of each owner of land that is newly included in the district corridor because of the realignment, or condemns that newly included land pursuant to s. 88.21 (6), Stats., and ch. 32, Stats. This subdivision does not apply if the realignment brings no new land into the district corridor, or if no district corridor is required under s. ATCP 48.24.

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.