CR 21-039 Proposed Rule Order

STATE OF WISCONSIN

DEPARTMENT OF AGRICULTURE, TRADE AND CONSUMER PROTECTION

PROPOSED ORDER OF THE DEPARTMENT OF AGRICULTURE, TRADE AND CONSUMER PROTECTION REPEALING A RULE

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The Wisconsin Department of Agriculture, Trade and Consumer Protection (Department) is petitioning the joint committee for review of administrative rules to repeal rules the department has determined to be unauthorized rules using the processes under s. 227.26 (4), Stats.

PROPOSED ORDER

An order of the Department of Agriculture, Trade and Consumer Protection to repeal ss. ATCP 48.01 (8), 48.24, Subchapter IX; and to amend ss. ATCP 48.01 (14), 48.08 (3) (a), 48.12 (2), 48.14 (1) (b), 48.20 (1) (a) 3., 48.21 (2) (a) 2., (2) (b) 1., (4) (a) 1., and (Note), 48.22 (5) and (Note), 48.28 (Note), relating to drainage districts.

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Analysis Prepared by the Department of

Agriculture, Trade and Consumer Protection

Statutes Interpreted

Statutes interpreted: Sections 88.15 and 88.74, Stats.

Statutory Authority

Statutory authority: Sections 88.11 (1) (h), (i), and (k), 88.15, and 93.07 (1), Stats..

Explanation of Agency Authority

The Department has general authority to adopt rules interpreting statutes under its jurisdiction (see s. 93.07 (1), Stats.). Under s. 88.11, Stats., the Department is authorized to do all of the following by rule:

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Establish procedures for assessments and reassessments.

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Establish performance standards for drainage district structures, ditches, maintenance and operations, in order to minimize adverse effects on water quality.

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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.

Pursuant to s. 227.26 (4), Stats., the Department may petition for repeal of an unauthorized rule. An unauthorized rule is one that “an agency lacks the authority to promulgate due to the repeal or amendment of the law that previously authorized its promulgation.” Sections 20.115 (7) (d) and 88.15, Stats. (2005) appropriated funds and directed the Department to make grants to county drainage boards to aid compliance. Section 88.15, Stats. (2005), directed the Department to promulgate rules for the administration of the grant program, which are found in ATCP 48.60, the only section in subchapter IX. 2007 Wisconsin Act 20 repealed ss. 20.115 (7) (d) and 88.15, Stats.

Related Statutes and Rules

This rule is related to chs. 19 and 985, Stats.; ss. 20.115 (7) (d), 30.01 (4m), 30.12, 30.18 (2), 30.20, 31.02, 32, 88.74, 93.08, 93.14, 93.15, 93.16, 227, 281.31 (2m), 281.65, 893.80, 895.46 (8), 946.13, Stats.; and chs. ATCP 1, NR 115, NR 117, and NR 811, Wis. Admin. Code.

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.

There are several inconsistencies with the drainage rule due to 2007 Wisconsin Act 20 and 2017 Wisconsin Act 115.  Sections 189 and 2258 of 2007 Wisconsin Act 20 repealed ss. 20.115(7) (d) and 88.15, Stats., which authorized and appropriated funds for grants to county drainage boards and directed the Department to make grants to county drainage boards to aid compliance.  2017 Wisconsin Act 115 made additional changes to Wis. Stat. ch. 88, relating to drainage districts and regulating the removal of material from certain drainage ditches.

Department Contact

Jane Landretti

General Counsel

Department of Agriculture, Trade and Consumer Protection

P.O. Box 8911

Madison, WI 53708-8911

[phone]

[e-mail]

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TEXT OF RULE

SECTION 1.

ATCP 48.01 (8) is repealed.

SECTION 2.

ATCP 48.01 (14) is amended to read: