1. (1) Prohibition. Except as provided in sub. (2), no county drainage board may install or modify any structure in a district drain, or approve the installation or modification of any structure in a district drain, if the installation or modification causes or aggravates a deviation from the formally established grade profile of that district drain. An installation or modification is rebuttably presumed to cause or aggravate a deviation from the formally established grade profile if it raises the water level in a district drain, or slows the runoff of water from upstream lands in the drainage district.

   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 person installing or modifying a structure in a district drain may also need a permit from the state of Wisconsin department of natural resources if the district drain 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.

2. (2) Temporary modifications. Subsection (1) does not apply to any of the following which the county drainage board undertakes or approves:

   1. (a) A temporary structure or modification that is reasonably necessary to protect the public health, safety or welfare in an emergency.
   2. (b) A temporary structure or modification that is necessary for other lawful construction or maintenance operations under this chapter.

   3. (c) A temporary structure or modification to provide essential crop irrigation during a drought if all of the following apply:

      1. 1. The county drainage board gives written notice of the proposed structure or modification to every upstream landowner whose access to drainage [will] be affected. A structure or modification is deemed to affect a landowner’s access to drainage if it impedes gravity flow of water from his or her land, through a real or assumed drain, to any real or assumed outlet at the formally established cross-section and grade profile of the district drain.

         Note: A missing word is shown in brackets.

      2. 2. The county drainage board resolves, to the satisfaction of the objecting landowner, every objection by an upstream landowner who is entitled to notice under subd. 1.

         Note: For example, a county drainage board may resolve a landowner’s objection, to the satisfaction of a landowner, by imposing conditions under subd. 3 which protect the interests of that landowner.

      3. 3. The county drainage board approves the structure or modification subject to written conditions that reasonably protect the public interest and the interests of all landowners in the drainage district.

         Note: A landowner withdrawing water for irrigation may need to obtain a permit from the state of Wisconsin department of natural resources under s. 30.18 (2) (a) 2., Stats.

   4. (d) A temporary structure or modification to provide water for cranberry harvest, or for cranberry winter ice cover, if all of the following apply:

      1. 1. The structure or modification is installed for not more than 14 days for cranberry harvest, and not more than 14 days for cranberry winter ice cover. The county drainage board may, for good cause, extend a 14-day period for up to 7 more days at the request of a cranberry grower.
      2. 2. The county drainage board gives written notice of the proposed structure or modification to every upstream landowner whose access to drainage will be affected. A structure or modification is deemed to affect a landowner’s access to drainage if it impedes gravity flow of water from his or her land, through a real or assumed drain, to any real or assumed outlet at the formally established cross-section and grade profile of the district drain.
      3. 3. The county drainage board resolves, to the satisfaction of the objecting landowner, every objection by an upstream landowner who is entitled to notice under subd. 2.

      4. 4. The county drainage board approves the structure or modification subject to written conditions that reasonably protect the public interest and the interests of all landowners in the drainage district.

         Note: A county drainage board may not authorize a cranberry grower to install a temporary structure under par. (d) for more than 14 days, except that the board may extend a 14-day authorization for up to 7 more days in response to a separate application from the cranberry grower under par. (d) 1. An authorization under par. (d) does not extend from season to season, or from year to year.

         A county drainage board might be able to resolve a landowner’s objection under par. (d) 3., to the satisfaction of a landowner, by imposing conditions under par. (d) 4. which protect the interests of that landowner.

History

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