ATCP 48.36(3)
(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:
ATCP 48.36(3)(f)
(f) The county highway committee if the proposed action may affect a public highway.
ATCP 48.36(4)
(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).
ATCP 48.36 History
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 48.38
ATCP 48.38 Department approval or disapproval. ATCP 48.38(1)(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:
ATCP 48.38(1)(a)
(a) Approve an action that formally reestablishes the cross-section of a district drain.
ATCP 48.38(1)(b)
(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.
ATCP 48.38(1)(c)
(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.
ATCP 48.38(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.
ATCP 48.38(3)
(3) Conditional approval. The department may approve a proposed action under
s. ATCP 48.34 subject to conditions specified by the department.
ATCP 48.38(4)
(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:
ATCP 48.38(4)(d)
(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.
ATCP 48.38(4)(e)
(e) The proposed action will have a substantial adverse effect on water quality, or on the human or natural environment.
ATCP 48.38(5)
(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:
ATCP 48.38(5)(a)
(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.
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.
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)(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 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(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)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(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)(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.
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.
