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 Sections 189 and 2258 of 2007 Wisconsin Act 20 repealed ss. 20.115(7) (d) and 88.15, Stats., which authorized and appropriated funds for grants to county drainage boards and directed the Department to make grants to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
(608) 224-5022
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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ATCP 48.01 (8) is repealed.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:(14) “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: (3) (a) 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. SECTION 4.
ATCP 48.12 (2) is amended to read: (2) Before a county drainage board or its agent performs an inspection on private lands, other than in a district corridor under s. ATCP 48.24, the county drainage board or its agent shall notify the landowner of the inspection. 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. SECTION 5.
ATCP 48.14 (1) (b) is amended to read:(1)
(b) Whether a district corridor has been established and is being maintained around every district ditch in compliance with this chapter. SECTION 6.
ATCP 48.20 (1) (a) 3. is amended to read: (1)
(a) 3. The intended location and width of every district corridor required under s. ATCP 48.24.SECTION 7.
ATCP 48.21 (2) (a) 2. is amended to read:(2)
(a) 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. SECTION 8.
ATCP 48.21 (2) (b) 1. is amended to read:(3)
(b) 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. SECTION 9.
ATCP 48.21 (2) (b) (Note) is amended to read:(2)
(b) (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.SECTION 10.
ATCP 48.21 (4) (a) 1. is amended to read: (3)
(a) 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.SECTION 11.
ATCP 48.21 (4) (a) (Note) is amended to read:(4)
(a) (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.SECTION 12.
ATCP 28.22 (5) is amended to read:(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.SECTION 13.
ATCP 48.24 is repealed. SECTION 14.
ATCP 48.28 (2) (Note) is amended to read: (2) (Note) In some parts of a district corridor, woody vegetation may have important value as wildlife habitat, or for controlling soil erosion. Ordinarily, ditches are not subject to local shoreland or wetland zoning ordinances. However, in a small number of situations, where ditches are considered natural navigable streams, local ordinances may limit the cutting of woody vegetation. See s. 281.31 (2m), Stats., and chs. NR 115 and 117. SECTION 15.
Subchapter IX — Grants to County Drainage Boards is repealed.SECTION 16.
EFFECTIVE DATE. The rules repealed in this order shall take effect on the first day of the month following publication in the Wisconsin Administrative Register, pursuant to s. 227.22 (2) (intro.), Stats. _____________________________________________________________________________________
(END OF TEXT OF RULE)
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Dated this __30th__ day of April, 2021
WISCONSIN DEPARTMENT OF AGRICULTURE, TRADE AND CONSUMER PROTECTION
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By: Randy Romanski, Secretary-designee
