$12,500 fine possible-placing culvert w/o a permit
$12,500 fine possible-placing culvert w/o a permit
(OP)
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?
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?





RE: $12,500 fine possible-placing culvert w/o a permit
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!).
RE: $12,500 fine possible-placing culvert w/o a permit
dha.state.wi.us/home/Decisions/DNR/2002/3-NE-01-454.pdf
RE: $12,500 fine possible-placing culvert w/o a permit
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.
RE: $12,500 fine possible-placing culvert w/o a permit
RE: $12,500 fine possible-placing culvert w/o a permit
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
RE: $12,500 fine possible-placing culvert w/o a permit
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.
RE: $12,500 fine possible-placing culvert w/o a permit
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?
RE: $12,500 fine possible-placing culvert w/o a permit
RE: $12,500 fine possible-placing culvert w/o a permit
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.
RE: $12,500 fine possible-placing culvert w/o a permit
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
RE: $12,500 fine possible-placing culvert w/o a permit
RE: $12,500 fine possible-placing culvert w/o a permit
RE: $12,500 fine possible-placing culvert w/o a permit
RE: $12,500 fine possible-placing culvert w/o a permit
RE: $12,500 fine possible-placing culvert w/o a permit
RE: $12,500 fine possible-placing culvert w/o a permit
RE: $12,500 fine possible-placing culvert w/o a permit
Richard A. Cornelius, P.E.
WWW.amlinereast.com
RE: $12,500 fine possible-placing culvert w/o a permit
RE: $12,500 fine possible-placing culvert w/o a permit
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.
RE: $12,500 fine possible-placing culvert w/o a permit
Pipe manufacturers are generally required to accurately identify their pipe both for internal record-keeping purposes, and for their customers. They are also required to mark these pipes with certain identification markings. This pipe mark provides identity and traceability for each pipe, thus enabling the manufacturer and the end-user to determine the manufacturing origin of the pipe.
Data that is generally marked on the outside of the pipe includes:
• Manufacturer
• Specification
• Compatible Standards
• Specified Dimensions
• Grade and Class
• Product Specification Level
• Process of Manufacture
• Test Pressure
To determine if the r/w was abandoned, you will need to do a property search at the local county assessor's office.
RE: $12,500 fine possible-placing culvert w/o a permit
You can worry about lawyers and regulations if you want to, but as a landowner, you deserve an explanation that you can understand.
Don't get defensive or frustrated, just remain calm and ask the governor's office for clarification.
It'll trickle down, but it'll have to pass through the DNR's cheif en route.
Just one way to approach this situation, which from reading this thread, doesn't make sense at all to me either!
f-d
¡papá gordo ain't no madre flaca!
RE: $12,500 fine possible-placing culvert w/o a permit
RE: $12,500 fine possible-placing culvert w/o a permit
RE: $12,500 fine possible-placing culvert w/o a permit
In this case passive acceptance means nothing as it would preclude that you knew about its existance and the laws and chose to leave it in place. That would be very hard to prove in a court of law. If there is a law requiring you to actively search and decomission all such culverts found, then doing nothing is passive acceptance.
RE: $12,500 fine possible-placing culvert w/o a permit
"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."
ht
The case in this link is for exactly the same type of culvert situation.
Of course you can subcribe to the saying that lawyers sometimes use, don't tell me what the law is, tell me who the judge is.
RE: $12,500 fine possible-placing culvert w/o a permit
The culverts are buried. The only way to get the info you mentioned would be to dig up the culverts. Will this possibly result in another fine? Is there any other way to accurately age the pipes without digging them up.
I've read that the WDNR should work with the property owner to find reasonable oost effective solutions.In this case the first hint of a problem was the recept of a citation(s).
RE: $12,500 fine possible-placing culvert w/o a permit
My personal opinion is that I would not get an attorney involved unless I was going to court.
RE: $12,500 fine possible-placing culvert w/o a permit
Not kidding.
f-d
¡papá gordo ain't no madre flaca!
RE: $12,500 fine possible-placing culvert w/o a permit
RE: $12,500 fine possible-placing culvert w/o a permit
In the previous case cited, the owner regularly used and benefited from the culvert (bridge) that was installed without a permit and the owner clearly knew of its existance, function, and condition. The laws and statutes in the example referenced also refer to bridge structures (including culverts) over navigable waters.
I would reply to their $12,000 fine and letter stating that you did not know about the existance of the culvert, but you do now, and want to apply for the correct DNR permit to fill the entrance of the culvert in and abandon it in place. Since you are now aware of the culvert, you are now required to take action. Not doing so, would be passive acceptance.
Before contacting a lawyer, I would first see what DNR would require to abandon the culvert in place using the proper permit. If they refuse to remove the fine, I would get legal counsel.
RE: $12,500 fine possible-placing culvert w/o a permit
Black's Law Dictionary 25 (8th ed. 2004), defines "acquiescence" as "[a] person's tacit or passive acceptance; implied consent to an act."
Tacit or passive conduct that implies agreement or consent. For example, if one makes a statement and another is silent when an objection should be forthcoming, the second person's acquiescence to the statement may be inferred.
"If there is a law requiring you to actively search and decomission all such culverts found, then doing nothing is passive acceptance."
Generally speaking, ignorance of the law is no defense.
RE: $12,500 fine possible-placing culvert w/o a permit
Not a chance. I don't live in WI, don't know a single law in WI. But if what you say is true then that puts every single driveway, private road, commercial/industrial site etc. that has a stream crossing built before the law came into effect in violation and subject to such a fine or other legal action.
Are you really saying that?
RE: $12,500 fine possible-placing culvert w/o a permit
"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 quoted passage is copied straight from a similar case.
ht
If one "thinks" the law should be interpreted differently, one can always argue in court against the law. However, you end up paying your own legal fees to do it and it is usually not worth your while to pursue it. In the US legal system for the majority of the cases, you will pay your own legal fees whether you win or lose a case.
You may even win in court. That is the basis of the attorney saying, "Don't tell me what the law is, tell me who the judge is."
RE: $12,500 fine possible-placing culvert w/o a permit
But I do agree the OP would do well to heed the outcome of that case because it doesn't sound like he can prove his culvert was installed prior to the enactment of the law.
One thing I didn't catch though was how big the stream is that the culvert (culverts? is there multiple pipes crossing?) that started this thread is crossing. DNR apparently said it is navigable, which doesn't seem to need to be too big or too deep to be claimed as navigable, but how big is it?
RE: $12,500 fine possible-placing culvert w/o a permit
I called and left a message with the DNR last week, no return call. I then e-mailed the DNR requesting a sit down, no reply yet. I did cc the Regional Director of the DNR as well as the governors office. My hearing is next Tuesday @ 1:30pm.
I feel pretty confident I'd win in court, but would prefer not to incur the expense.
The stream is not navigable by a common man's definition, but is according to the DNR'S definition.
Wish me luck.
RE: $12,500 fine possible-placing culvert w/o a permit
RE: $12,500 fine possible-placing culvert w/o a permit
RE: $12,500 fine possible-placing culvert w/o a permit
Prinsco - Manufacturers of GOLDFLO® and ECOFLO® HDPE ...
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www.prinsco.com - Cached
RE: $12,500 fine possible-placing culvert w/o a permit
RE: $12,500 fine possible-placing culvert w/o a permit
You have to contact Prinsco and ask how and if this is done. Some of the ASTM manufacturing standards call for pipe marking.
Form of markings are specified in AASHTO M 294.
http://w
Prinsco should be able to assist you.
Manufacturer: Prinsco, Inc.
Corporate Address: PO Box 265
City: Prinsburg
State: MN Zip: 56281
Corporate Contact: Jeremy Duininck
Phone: 320-978-4116
Fax: 320-978-8602
E-mail: jduininck@prinsco.com