OF THE STATE OF WISCONSIN DEPARTMENT OF AGRICULTURE,
TRADE AND CONSUMER PROTECTION
REPEALING AN UNAUTHORIZED RULE
The Wisconsin Department of Agriculture, Trade and Consumer Protection proposes the following permanent rule to repeal ATCP 48.01(8), ATCP 48.24; and to amend ATCP 48.01(14), ATCP 48.08(3)(a), ATCP 48.12(2), ATCP 48.14(1)(b), ATCP 48.14(3), ATCP 48.20(1)(a)3., ATCP 48.21(2)(a)2., ATCP 48.21(2)(b)1., ATCP 48.21(Note), ATCP 48.21(4)(a)1., ATCP 48.21(Note), ATCP 48.28(Note), relating to drainage districts.
Analysis Prepared by the Department of
Agriculture, Trade and Consumer Protection
Statutes interpreted: Wis. Stats. ch. 88.
Explanation of Agency Authority
The Department has general authority to adopt rules interpreting statutes under its jurisdiction (see Wis. Stat. § 93.07(1)). Under Wis. Stat. § 88.11, the Department is authorized to do all of the following by rule:
- Establish procedures for assessments and reassessments.
- Establish performance standards for drainage district structures, ditches, maintenance and operations, in order to minimize adverse effects on water quality.
- Establish a procedure for an investigation of whether a drainage district complies with this section and any requirements imposed by the department under this section.
Related Statutes and Rules
This rule is related to Wis. Stats. §§ 19, 20.115(7)(d), 30.01(4m), 30.12, 30.18(2), 30.20, 31.02, 32, 93.08, 93.14, 93.15, 93.16, 227, 281.31(2m), 281.65, 893.80, 895.46(8), 946.13, and 985; Wis. Admin. Code chs. ATCP 1, NR 115, NR 117, and NR 811.
Brief Summary of Proposed Rule
First adopted in July 1995, Wis. Admin. Code ch. ATCP 48 (drainage rule) established the statewide framework of performance standards and procedures required to implement Wisconsin’s drainage of lands law, Wis. Stat. ch. 88 (drainage law). The requirements in statute and rule apply to drainage districts—special purpose districts formed primarily for the purpose of draining agricultural land—and the county drainage boards responsible for operating these drainage districts.
Among other things, the drainage rule includes a definition of a drainage district corridor, provisions for establishing, accessing and maintaining corridors, requirements for annual inspections and reports, and guidance on state and local permits required to perform maintenance activities.
2017 Wisconsin Act 115 made a number of changes to the drainage law, which created inconsistencies with the drainage rule. Act 115 redefined a drainage district corridor to apply to more than ditches, and codified requirements with respect to the establishment, accessibility, and maintenance of corridors. It created an option for county drainage boards to designate a different fiscal year for its annual reports. It also added exemptions to state and local permitting related to the maintenance of district ditches. The proposed rule is intended to repeal rules that the Department lacks the authority to promulgate based on revisions to Wis. Stat.ch. 88, through enactment of 2017 Wisconsin Act 115. Furthermore, the proposed rule is intended to ensure consistency with Wis. Stat. ch. 88.
Department of Agriculture, Trade and Consumer Protection
P.O. Box 8911
Madison, WI 53708-8911
SECTION 1. ATCP 48.01 (8) is repealed.
SECTION 2. ATCP 48.01 (14) is amended to read:
“Maintenance costs” means costs for the maintenance and repair of district drains and corridors under subch. IV.
SECTION 3. ATCP 48.08 (3) (a) is amended to read:
Acreage in a district corridor unless the county drainage board authorizes the landowner, under s. ATCP 48.24 (5), to engage in row cropping in the district corridor.