(1)Requirement. Except as provided in sub. (2), a county drainage board may not do any of the following without the department’s written approval:
(a) Construct or modify any district drain, or authorize any person to construct or modify a district drain.
(b) Install or modify any structure in a district drain, or authorize any person to install or modify any structure in a district drain.
(c) Authorize any person to connect a private drain to a district drain.
(d) Take any action under s. ATCP 48.20 or 48.21 that changes the formally established cross-section, grade profile or alignment of a district drain, regardless of whether that action involves any physical alteration to a district drain or structure.
(2)Exemptions. Subsection (1) does not apply to any of the following:
(a) Actions, such as routine maintenance or repair projects, that do not cause or aggravate any deviation from the formally established cross-section, grade profile or alignment of a district drain. An action is rebuttably presumed to cause or aggravate a deviation from a formally established grade profile if it raises the water level in a district drain or slows the runoff of water from lands in the drainage district.
(b) Restoration projects.
Note: A restoration project is exempt under par. (b) only to the extent that it is confined within the formally established cross-section, grade profile and alignment of a district drain, and does not go beyond those formally established specifications. See definition of “restoration project” under s. ATCP 48.01 (21).
(c) Temporary structures or modifications that a county drainage board installs or approves in compliance with s. ATCP 48.33 (2).
Note: A county drainage board should consult with the department to determine whether a particular county drainage board action requires department approval under this section. A county drainage board may seek the department’s advice or assistance regarding any proposed construction, repair, restoration or maintenance action, regardless of whether the action requires the department’s approval under this section. A county drainage board should consult with the department at the early planning stage to facilitate timely assistance and, if necessary, timely approval. A county drainage board may not deviate from approved project specifications without the department’s approval.
A person may need to obtain a permit from the state of Wisconsin department of natural resources before undertaking a construction or restoration project in a district drain which has a navigable stream history. See ss. 30.12, 30.18 (2), 30.20, 31.02, 88.31 and 88.62 (3), Stats. See also ch. 31, Stats.
History: Cr. Register, June, 1995, No. 474, eff. 7-1-95; r. and recr. Register, August, 1999, No. 524, eff. 9-1-99.
ATCP 48.36Applying for approval.
(1)Application required. A county drainage board shall apply in writing for department approval of a proposed action under s. ATCP 48.34. The application shall include all of the following information, in detail commensurate with the proposed action:
(a) District name or number. The name or number, or proposed name or number, of the drainage district.
(b) Proposed action. A statement describing the proposed action.
(c) Objectives. The objectives which the county drainage board expects to achieve by taking the proposed action. If the county drainage board expects to improve drainage, the county drainage board shall express its drainage objectives in terms of drainage volume, thoroughness of drainage, geographic scope of drainage, or other pertinent drainage measures.
(d) Persons requesting action. The persons, if any, who are asking the county drainage board to take the proposed action.
(e) Estimated cost. The estimated cost of the proposed action, including any damage awards to landowners who will be adversely affected.
(f) Design specifications. Design specifications for the proposed action, prepared by an engineer who is qualified under s. 88.21 (5), Stats. The design specifications shall comply with applicable standards under subch. IV. The engineer preparing the design specifications shall state whether, in the engineer’s judgment, the proposed action as designed will be effective in achieving the county drainage board’s stated objectives.
(g) Lands and waters affected. A map showing the location of the proposed action, and the location of the lands and waters affected by the proposed action. The map shall indicate all of the following if relevant:
1. The current and proposed use of the affected lands.
2. The topography of the affected lands.
3. The location of any affected wetlands.
4. The identity and location of any affected navigable waterway, stormwater management district, lake district, priority watershed or lake under s. 281.65, Stats., or wellhead protection area under ch. NR 811.
5. The identity and location of any affected building, transportation corridor or utility easement.
(h) Hydrology analysis. A hydrology analysis, prepared by an engineer who is qualified under s. 88.21 (5), Stats. The hydrology analysis shall analyze the effect of the proposed action, if any, on all of the following:
1. Water surface elevations in district drains at base flow. The hydrology analysis shall use a method described in ch. ATCP 48 Appendix A, or another method approved by the department, to estimate water surface elevations at base flow.
2. Peak water surface elevations in district drains in the event of a 10-year 24-hour storm event. The hydrology analysis shall use the method described in ch. ATCP 48 Appendix A, or another method approved by the department, to estimate peak water surface elevations in the event of a 10-year 24-hour storm event.
3. Peak water surface elevations in district drains in the event of a 25-year 24-hour storm event. The hydrology analysis shall use the method described in ch. ATCP 48 Appendix A, or another method approved by the department, to estimate peak water surface elevations in the event of a 25-year 24-hour storm event.
(i) Construction plan. A construction plan, if applicable, including all of the following:
1. A plan for controlling construction site erosion.
2. The estimated amount of material, if any, that will be removed.
3. A plan for depositing removed material, if any, including the location and configuration of any deposits.
(j) Notice and public hearing. A statement that the county drainage board has complied with the notice and public hearing requirement under sub. (2).
(k) Formal changes to cross-section, grade profile or alignment. All of the following information if the county drainage board proposes to change the formally established cross-section, grade profile or alignment of a district drain:
1. The cross-section, grade profile or alignment which the county drainage board proposes to change.
2. The new cross-section, grade profile or alignment proposed by the county drainage board. The new specifications shall be prepared by an engineer who is qualified under s. 88.21 (5), Stats.
3. If the county drainage board proposes to change a formally established alignment, a statement that the county drainage board has complied with s. ATCP 48.21 (4) (a) 1.
4. If the county drainage board proposes to change a formally established grade profile, a statement that the county drainage board has complied with s. ATCP 48.21 (5) (a) 1. and 2.
(L) Assessment of benefits to landowners. A statement explaining how the proposed action will affect the assessment of benefits to landowners under s. ATCP 48.06, if at all.
Note: See s. ATCP 48.06 (2) (a) and s. 88.46, Stats.
(m) Financing plan. The drainage board’s plan for financing the proposed action, including any proposed cost assessments to lands in the drainage district.
Note: See s. ATCP 48.02.
(n) Environmental effects. An assessment of how the proposed action may affect the human and natural environment, including effects on all of the following:
1. Lands and land uses identified under par. (g).
2. Surface water levels, quality and temperature.
3. Groundwater levels and quality.
(o) Alternatives. An assessment of alternatives to the proposed action, including the alternative of doing nothing. The assessment shall discuss the relative benefits, costs and environmental effects of the alternatives.
(2)County drainage board; notice and hearing on proposed action. Before a county drainage board submits an application to the department under sub. (1), it shall do all of the following:
(a) Publish a hearing notice and hold a public hearing on the proposed action. The notice and hearing shall comply with applicable requirements under s. 88.05 and 88.065, Stats. The hearing notice shall clearly describe the proposed action.
(b) Give members of the public at least 30 days, following the public hearing under par. (a), to comment on the proposed action.
(3)Copies filed with other agencies. Whenever a county drainage board files an application with the department under sub. (1), the county drainage board shall simultaneously file copies of the application with all of the following:
(a) The Wisconsin department of natural resources.
(b) The United States army corps of engineers.
(c) The county zoning administrator.
(d) The county land conservation committee.
(e) Every municipality affected by the proposed action.
(f) The county highway committee if the proposed action may affect a public highway.
(4)Additional information. The department may require a county drainage board to file additional information, as necessary, before approving or disapproving an application under sub. (1).
History: Cr. Register, June, 1995, No. 474, eff. 7-1-95; r. and recr. Register, August, 1999, No. 524, eff. 9-1-99; correction in (1) (g) 4. made under s. 13.93 (2m) (b) 7., Stats., Register January, 2002 No. 553; corrections in (1) (h) 1. to 3. made under s. 13.92 (4) (b) 7., Stats., Register April 2013 No. 688.
ATCP 48.38Department approval or disapproval.
(1)Approving drainage alterations. The department may approve, disapprove, or conditionally approve an action under s. ATCP 48.34. The department may not approve any action under s. ATCP 48.34 that causes the cross-section, grade profile or alignment of a district drain to deviate from the cross-section, grade profile or alignment formally established for that drain, but may do any of the following based on the county drainage board’s application under s. ATCP 48.36:
(a) Approve an action that formally reestablishes the cross-section of a district drain.
(b) Approve an action that formally reestablishes the alignment of a district drain if the department finds that the county drainage board has complied with applicable requirements under s. ATCP 48.21 (4) (a) 1.
(c) Approve an action that formally reestablishes the grade profile of a district drain if the department finds that the county drainage board has complied with s. ATCP 48.21 (5) (a) 1. and 2.
(2)Deadline for approval or disapproval. Within 45 days after a county drainage board files a complete application under s. ATCP 48.36, including any additional information which the department requests under s. ATCP 48.36 (4), the department shall issue a written notice approving or disapproving the county drainage board’s proposed action under s. ATCP 48.34. The department may, for good cause, extend the deadline to a date specified by the department.
Note: See also ss. 88.32 (3m) and 88.35 (7), Stats.
(3)Conditional approval. The department may approve a proposed action under s. ATCP 48.34 subject to conditions specified by the department.
(4)Reasons for disapproval. If the department disapproves a proposed action under s. ATCP 48.34, the department shall give the county drainage board written notice of the reasons. The department may disapprove a proposed action for any of the following reasons:
(a) The county drainage board has failed to provide information required under s. ATCP 48.36.
(b) The proposed action would violate this chapter or ch. 88, Stats.
(c) The requested approval would violate this chapter or ch. 88, Stats.
(d) The proposed action is not technically feasible, is not technically sound, or is not adequately designed to achieve the county drainage board’s stated objectives.
(e) The proposed action will have a substantial adverse effect on water quality, or on the human or natural environment.
(5)Environmental assessment. The department shall prepare an environmental assessment under s. ATCP 3.02 before it approves a proposed action under s. ATCP 48.34 if any of the following apply:
(a) The proposed action will drain more than 200 acres of land not previously drained, or will substantially alter drainage from more than 200 acres of land.
(b) The proposed action will drain more than 5 acres of wetlands.
(c) The proposed action involves the construction or modification of a dam in a drain with a navigable stream history.
(d) The proposed action involves a cold water fishery in a district drain with a navigable stream history.
(e) The proposed action will substantially affect the base flow in surface waters of the state.
(f) The department determines that an environmental assessment is needed to determine whether an environmental impact statement is required under s. ATCP 3.03.
(6)Environmental impact statement. The department shall prepare an environmental impact statement under s. ATCP 3.03 before approving a proposed action under s. ATCP 48.34 only if the department determines that an environmental impact statement is required under s. ATCP 3.03.
History: Cr. Register, June, 1995, No. 474, eff. 7-1-95; r. and recr. Register, August, 1999, No. 524, eff. 9-1-99.
Subchapter VI Landowner Rights and Responsibilities
ATCP 48.40Notice of landowner actions affecting drainage district.
(1)Requirement. A landowner under sub. (2), including the state of Wisconsin or any county, town, village or city, shall notify the county drainage board before undertaking any action, including any change in land use, that will do any of the following:
(a) Alter the flow of water into or from a district drain.
Loading...
Loading...
Published under s. 35.93, Stats. Updated on the first day of each month. Entire code is always current. The Register date on each page is the date the chapter was last published.