Chapter ATCP 48

ATCP 48.38(5)(b) (b) The proposed action will drain more than 5 acres of wetlands.

ATCP 48.38(5)(c) (c) The proposed action involves the construction or modification of a dam in a drain with a navigable stream history.

ATCP 48.38(5)(d) (d) The proposed action involves a cold water fishery in a district drain with a navigable stream history.

ATCP 48.38(5)(e) (e) The proposed action will substantially affect the base flow in surface waters of the state.

ATCP 48.38(5)(f) (f) The department determines that an environmental assessment is needed to determine whether an environmental impact statement is required under s. ATCP 3.03.

ATCP 48.38(6) (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.

ATCP 48.38 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95; r. and recr. Register, August, 1999, No. 524, eff. 9-1-99.

subch. VI of ch. ATCP 48 Subchapter VI — Landowner Rights and Responsibilities

ATCP 48.40 ATCP 48.40 Notice of landowner actions affecting drainage district.

ATCP 48.40(1) (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:

ATCP 48.40(1)(a) (a) Alter the flow of water into or from a district drain.

ATCP 48.40(1)(b) (b) Increase the amount of soil erosion, or the movement of suspended solids to a district drain.

ATCP 48.40(1)(c) (c) Affect the operation of the drainage district, or the costs incurred by the drainage district.

ATCP 48.40(2) (2) Application. Subsection (1) applies to an owner of land that receives water from or discharges water to a drainage district, regardless of whether the land is included in the drainage district.

ATCP 48.40 Note Note: A county drainage board may take various actions in response to landowner actions that adversely affect a drainage district. For example, see ss. ATCP 48.02 (5), 48.04, 48.06 (2), 48.30 and 48.44 (3). See also ss. 88.89 to 88.92, Stats.

ATCP 48.40 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95.

ATCP 48.42 ATCP 48.42 Removing lands from drainage district. No landowner, including the state of Wisconsin or any county, town, village or city, may do either of the following:

ATCP 48.42(1) (1) Remove lands from inclusion in a drainage district without obtaining the approval of the county drainage board under s. 88.80, Stats.

ATCP 48.42(2) (2) Disconnect a private drain from a district drain, except with the approval of the county drainage board.

ATCP 48.42 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95.

ATCP 48.43 ATCP 48.43 Connecting private drains to district drains; extending private drains. No person may do either of the following without written approval from the county drainage board:

ATCP 48.43(1) (1) Connect a private drain to a district drain.

ATCP 48.43(2) (2) Extend a private drain that is currently connected to a district drain.

ATCP 48.43 Note Note: Under s. 88.92 (1), Stats., a county drainage board may approve the connection of private drains to district drains, or the extension of private drains from district drains, and may establish conditions for approval. Under s. 88.92 (2), Stats., a person who connects or extends a private drain, or removes a spoil pile, without drainage board approval is liable for damages incurred by the drainage district as a result of that action. “Damages” include payments that the drainage district would have received during the time that the illegal connection or extension existed if the territory drained by the illegal connection or extension had been subject to assessment.

ATCP 48.43 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95; renum. from ATCP 48.44, Register, August, 1999, No. 524, eff. 9-1-99.

ATCP 48.44 ATCP 48.44 Obstructing or altering district drains.

ATCP 48.44(1) (1) Prohibition. Except as provided under sub. (2), no person may obstruct or alter a district drain without prior written approval from the county drainage board.

ATCP 48.44(2) (2) Withdrawing water; exemption. An owner of land adjacent to a district drain may, without prior approval from the county drainage board, withdraw water from a district drain and place an obstruction in the district drain for that purpose while withdrawing that water if all of the following apply:

ATCP 48.44(2)(a) (a) The landowner notifies the county drainage board under s. ATCP 48.40 before withdrawing the water or placing the obstruction in the district drain.

ATCP 48.44(2)(b) (b) The landowner obtains a permit from the department of natural resources authorizing the withdrawal, if a permit is required under s. 30.18 (2) (a) 2., Stats.

ATCP 48.44(2)(c) (c) The obstruction does not elevate the water surface elevation in the district drain, at the point of the obstruction, above the base flow elevation specified as part of the formally established grade profile for that district drain.

ATCP 48.44(2)(d) (d) Neither the obstruction nor the withdrawal of water reduces the base flow, in a district drain that has a navigable stream history, below the minimum base flow which the state of Wisconsin department of natural resources has established for that district drain under s. 88.31, Stats..

ATCP 48.44 Note Note: A “formally established” grade profile is a grade profile established by court order, or by the county drainage board under s. ATCP 48.20 or 48.21. A violation of par. (c) “materially defeats the purposes of drainage” within the meaning of s. 88.93, Stats.

ATCP 48.44(2)(e) (e) The withdrawal does not injure any district drain, or make any district drain more susceptible to injury. Injury to a district drain includes, for purposes of this paragraph, any of the following:

ATCP 48.44(2)(e)1. 1. Damage to any structure in a district drain.

ATCP 48.44(2)(e)2. 2. The deposition of excavated materials in a district drain.

ATCP 48.44(2)(e)3. 3. The weakening, undercutting or accelerated erosion of any side bank in a district drain.

ATCP 48.44(3) (3) Drainage board may review. A county drainage board may do any of the following:

ATCP 48.44(3)(a) (a) Require a landowner to provide information showing that the landowner’s withdrawal of water complies with sub. (2).

ATCP 48.44(3)(b) (b) Prohibit a landowner from withdrawing water under sub. (2) if the drainage board reasonably concludes that the withdrawal violates this chapter. The drainage board shall document, in writing, the basis for its conclusion.

ATCP 48.44 History History: Cr. Register, August, 1999, No. 524, eff. 9-1-99.

ATCP 48.45 ATCP 48.45 Landowner rights.

ATCP 48.45(1) (1) Action to enforce compliance.

ATCP 48.45(1)(a) (a) An owner of land in a drainage district may file a written petition with the county drainage board asking the county drainage board to do any of the following:

ATCP 48.45(1)(a)1. 1. Restore, repair, maintain or, if necessary, modify a district drain in order to conform the drain to the cross-section, alignment or grade profile formally established for that drain.

ATCP 48.45 Note Note: Drain specifications are formally established by court order, or by drainage board action under s. ATCP 48.20 or 48.21. Deviations from formally established specifications may effectively deprive landowners of drainage to which they are legally entitled.

ATCP 48.45(1)(a)2. 2. Remove an obstruction placed in a district drain in violation of this chapter or ch. 88, Stats.

ATCP 48.45(1)(a)3. 3. Correct a violation of this chapter or ch. 88, Stats.

ATCP 48.45(1)(b) (b) A petition under par. (a) shall identify the grounds for the petition and the action requested of the county drainage board. A county drainage board may require the petitioner to provide further information which is reasonably necessary in order for the board to properly evaluate the petition.

ATCP 48.45(1)(c) (c) Within 60 days after a landowner files a complete petition with the county drainage board, the county drainage board shall provide the landowner with a written response that does all of the following:

ATCP 48.45(1)(c)1. 1. Describes and explains the action, if any, which the county drainage board will take in response to the petition.

ATCP 48.45(1)(c)2. 2. Explains the county drainage board’s refusal to take action on the petition, if the county drainage board refuses to take action.

ATCP 48.45(1)(d) (d) A petitioner under par. (a) may, after receiving a county drainage board’s response under par. (c), file a written petition with the department alleging that a county drainage board has violated this chapter or ch. 88, Stats. The department may conduct an investigation to determine whether the county drainage board has violated this chapter or ch. 88, Stats. If the department finds that a county drainage board has violated this chapter or ch. 88, Stats., the department shall issue an order under s. ATCP 48.52 which directs the county drainage board to correct the violation.

ATCP 48.45 Note Note: The remedies provided to a landowner under sub. (1) are in addition to any other legal remedies which may be available to the landowner. A landowner is not required to pursue any of the remedies under sub. (1) before pursuing other legal remedies. A landowner may challenge a county drainage board action that violates this chapter or ch. 88, Stats., even if the department has approved that action. (In some cases, the department may not be aware of facts constituting a violation when it approves a county drainage board action.)

ATCP 48.45(2) (2) Land ownership change. A change of ownership does not relieve or deprive a succeeding landowner of rights or responsibilities that run with the land under ch. 88, Stats., or this chapter.

ATCP 48.45 History History: Cr. Register, August, 1999, No. 524, eff. 9-1-99.

subch. VII of ch. ATCP 48 Subchapter VII — Drainage District Records and Financial Management

ATCP 48.46 ATCP 48.46 Records required.

ATCP 48.46(1) (1) Orders. A county drainage board secretary and the county zoning administrator shall maintain in perpetuity a copy of every order of the circuit court or the county drainage board that does any of the following:

ATCP 48.46(1)(a) (a) Creates, modifies, suspends or dissolves a drainage district. The record shall include maps or descriptions showing the district boundaries affected by the order.

ATCP 48.46(1)(b) (b) Approves the construction, enlargement, extension or modification of a district drain. The record shall include any information describing cross-sections, grade profiles and alignments of drains affected by the order.

ATCP 48.46(1)(c) (c) Confirms or orders an assessment, supplemental assessment or reassessment of benefits, damages or costs to landowners in a drainage district.

ATCP 48.46 Note Note: Under s. 88.19 (4) to (7), Stats., the department may determine the records required to be preserved regarding drainage districts.

ATCP 48.46(1)(d) (d) Formally establishes any drainage district specifications under s. ATCP 48.20 or 48.21.

ATCP 48.46(2) (2) Drainage district specifications. A county drainage board shall have on file, at all times, drainage district specifications established by court order, or by the county drainage board under s. ATCP 48.20 or 48.21. Specifications shall include all existing specifications designating any of the following:

ATCP 48.46(2)(a) (a) Drainage district boundaries, district drains and district corridors.

ATCP 48.46(2)(b) (b) Cross-sections, alignments and grade profiles of district drains.

ATCP 48.46(4) (4) Reports. A county drainage board secretary shall keep, for at least 10 years, a copy of every inspection report filed with the department under subchapter III, and every annual report filed with the county zoning administrator under s. 88.24, Stats. A county zoning administrator shall keep, for at least 10 years, a copy of every annual report filed under s. 88.24, Stats.

ATCP 48.46(5) (5) Minutes of meetings. A county drainage board secretary shall prepare minutes of the following meetings, and shall keep those minutes for at least 10 years:

ATCP 48.46(5)(a) (a) Every meeting of the county drainage board.

ATCP 48.46(5)(b) (b) Every meeting of district landowners held under the auspices of the county drainage board.

ATCP 48.46 Note Note: Under county law or policy, a county drainage board may be required to retain the minutes of meetings for more than 10 years.

ATCP 48.46(6) (6) Construction and restoration records. A county drainage board secretary shall keep a copy of every request for approval filed with the department under s. ATCP 48.36, and every approval or disapproval issued by the department under s. ATCP 48.38. Records under this subsection pertaining to each drainage district shall be retained for at least the life of that drainage district.

ATCP 48.46 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95; am. (1) (b), cr. (1) (d), r. and recr. (2), r. (3), Register, August, 1999, No. 524, eff. 9-1-99.

ATCP 48.48 ATCP 48.48 Care and inspection of records.

ATCP 48.48(1) (1) Records organized and accessible. Records required under s. ATCP 48.46 shall be organized by drainage district, and shall be readily accessible for inspection.

ATCP 48.48(2) (2) Destruction of records; notice. A county drainage board shall notify the department and the state historical society in writing at least 60 days before the county drainage board destroys any record identified under s. ATCP 48.46. The department or the state historical society may take custody of any records proposed for destruction.

ATCP 48.48 Note Note: See s. 88.19 (4) (d), Stats.

ATCP 48.48(3) (3) Department may inspect records and obtain copies. The department may inspect and copy any drainage district record kept by a county drainage board, or by any person in this state, including any record required under s. ATCP 48.46. A county drainage board shall, at the department’s request, allow the department to copy any drainage record kept by a county drainage board, including any record kept under s. ATCP 48.46. The department shall retain a copy of any record obtained under this subsection and shall deliver a copy to the county zoning administrator.

ATCP 48.48 Note Note: See s. 88.19 (5), Stats.

ATCP 48.48(4) (4) Filing records with department and county zoning administrator. The secretary of the county drainage board shall provide a copy of drainage board records under s. ATCP 48.46 (1) to (4) that are created after July 1, 1995 to the department and the county zoning administrator.

ATCP 48.48 Note Note: See s. 88.19 (5) to (7), Stats.

ATCP 48.48 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95.

subch. VIII of ch. ATCP 48 Subchapter VIII — Enforcement and Variances

Subch. VIII of ch. ATCP 48 Note Note: In addition to any other remedy specified under this chapter, the department may bring an action to recover a civil forfeiture under s. 88.11 (8), Stats., from any person who violates this chapter.

ATCP 48.49 ATCP 48.49 Financial management.

ATCP 48.49(1) (1) County treasurer.

ATCP 48.49(1)(a) (a) Except as provided in sub. (2), the county treasurer shall serve as the county drainage board treasurer pursuant to s. 88.18, Stats. The county treasurer shall comply with applicable requirements under ch. 88, Stats., and this chapter.

ATCP 48.49(1)(b) (b) If the county treasurer serves as the county drainage board treasurer, the county treasurer may retain for the benefit of the county a portion of the interest received on drainage district funds held by the county treasurer, to cover county costs identified under s. 88.18 (1), Stats. The county treasurer may not retain an amount that exceeds the amount authorized under s. 88.18 (1), Stats.