$12,500 fine possible-placing culvert w/o a permit 2

[Scheer772]

I own property in Northern Wi.that has an old abandoned highway running through it. At least 35 years ago someone,either my grandfather or uncle, placed a black plastic culvert under the road to reduce flooding and erosion.The local DNR issused a citation on 11/11/2010 for placing 'new' plastic culverts on the bed of a navigable stream without required depar
tment permit and in violation of state laws.

Questions:

1.Were there laws in place 30+ years ago that required us to get a permit?
2.Does anyone know what kind of attorney I should hire to fight this fine?
3.Can they require me to get a new permit after the fact?

 

[Ron]

You can usually research the state laws online. Look for their historical citations, and from those you can usually determine when they became effective.

You probably need a property rights attorney (not just a real estate attorney, but one who deals specifically with property rights), not necessarily a construction attorney. The construction portion is straightforward...prove the age of the culvert.

If the road was abandoned, was the easement also abandoned? Check property records for any recordings of such. If the easement was abandoned and the roadway has been abandoned (you can make a strong case for this if there has been no maintenance of the culvert or roadway by county services), and all of the culvert is on your property, unless you are obstructing water rights or causing flooding, the construction is probably "grandfathered" (in this case literally and figuratively!).

 

[bimr]

The file in the link should answer your questions:

dha.state.wi.us/home/Decisions/DNR/2002/3-NE-01-454.pdf

 

[bimr]

TYPICAL CONCLUSIONS OF LAW

1.Were there laws in place 30+ years ago that required us to get a permit?

The laws typically read: "no person may construct or maintain". They have you on the "maintain". It will not matter when it was built.

2.Does anyone know what kind of attorney I should hire to fight this fine?

Any attorney with experience working with the DNR would due.

3.Can they require me to get a new permit after the fact?

If you want a culvert, You will probably have to hire an engineer to design a replacement culvert that meets the DNR requirements.

 

[cvg]

you may have a better case for suing the county/state for creating a nuisance on your property when they improperly abandoned the roadway. They apparently blocked the navigable stream when they constructed the road.

 

[Scheer772]

I like the way you think cvg.
Thanks to the other responders for their imput.
I think I'm screwed according to the link provided by bimr.
However, I will consult with an attorney

 

[bridgebuster]

"The laws typically read: "no person may construct or maintain". They have you on the "maintain". It will not matter when it was built."

Would ex post facto law apply in this case, particularly with respect to maintain? To me "maintain" is ambiguous. Does it mean maintain only what was construcuted after the law was enacted or does it mean maintain anything that was in existence prior to the law? It would seem if the intent was toward the latter the law would have to explain what it means not to maintain.

Best to consult a lawyer.

 

[bimr]

The concept of "maintain" is taken from case law. If you read the WI case that is referenced above:

X testified that since he and his wife have owned the property he has not actively performed any maintenance on the culvert. In the context of Wis. Stat. §30.123, “maintain” is not limited to actively performing maintenance but also includes passively allowing the culvert to continue in existence. The X's have maintained the
culvert since they became the owners of the property and are the proper party against whom the Department should direct the enforcement action.

Some follow-up questions:

What is meant by an "old abandoned highway"? Has the r/w owner abandoned the r/w? Who owns the r/w.

How do you place a "black plastic culvert" under the highway? Was this open cut?

Was "black plastic culvert" available 30 years ago?

 

[bridgebuster]

I agree with your definition of maintain. What I was questioning was the legislative intent of maintain. Did they mean that anything constructed prior to the statute had to be removed? If that were the case there must have been a lot of culverts removed in Wisconsin.

 

[BigInch]

I don't know what you want to do with it now, but...

The Federal laws were there 30 years ago, if you, or they, refer to and the water course is a navigable stream. The Corps of Engineers have ultimate jurisdiction over all navigable streams everywhere in the USA as far as I know. You may need a state permit too, but check with the local COE district office as well, 'cause you might not get a state permit until you get the Fed's OK, or v/v.

 

[Scheer772]

The state of Wisconsin built a new road parallel to the old road sometime prior to 1965. At that time,I believe the state abandoned the old road. Dates are purely a guess on my part.

In looking at the culvert it would appear that the roadway was excavated, the culvert placed, and then covered by sand,rock, and the old asphalt. Unfortunately no one is alive who can fill in the blanks.

I'm not sure when black plastic pipe become avaiable. The 30-35 years is again, purely a guess based on my green grass frog culvert shooting days.

Is COE short for Corp of Engineers?

Thanks

 

[cvg]

the correct abbrev for US Army Corps of Engineers is USACE. You can probably build your culvert under one of the nationwide permits. However, the USACE will likely not require it since it has been there for years (possibly prior to authorization of the clean water act).

 

[BigInch]

Their navigable stream authority was in effect about 100 years or more before the clean water act and wetlands protection policies ever came into being .. as I recall.

 

[cvg]

no argument that the stream may be navigable, just that the 404 permit process came after the clean water act was authorized

 

[BigInch]

This is going back some, but again as I recall, 404 is for permits to discharge or to place fill or dredging material, and does not cover building things in or across a navigable streams. Its also been almost as long since I looked at it too, but I could sware I made applications for several pipeline crossings and for the construction of a boat dock before the clean water act was ever passed.

 

[cvg]

401 certification and 404 permitting are a major part of the clean water act. perhaps there were other types of permits for pipelines before that. a key part of the 404 permit process is affects to waters of the US which are generally defined as navigable streams, however were they are ephemeral it often extends to streams that are dry washes.

 

[BigInch]

One of those pipeline crossing was for the Intercostal Waterway. The boat dock (private) was on a rather small bayou about a 1/2 mile upstream of its entering Matagorda Bay. Permit was handled by the USACE Galveston District Office.

 

[dicksewerrat]

Is the road really abandoned? Do people use it? Call the DOT and County Highway Dept. To find the actual disposition of the old roadway easement. You may be able to tell the DNR that you are going to dig out the culvert and return the stream to its natural state. Ask them for a grant to assist.

Richard A. Cornelius, P.E.

http://WWW.amlinereast.com

 

[BigInch]

Excellent thought. "Ask them for a grant to assist."

 

[Scheer772]

The road has not been used by the public in 50+ years.I believe the black
plastic pipe replaced a metal pipe that was destroyed by a logger 20-25 years ago. Again dates are WAG's on my part.
How do I find the age of the black corrugated pipe?
Where do I go to find out if the road and ROW were legally abandoned?
The old road was a state highway.