I had an opportunity to communicate with two of the alderpersons associated with Resolution 1-R-23, the anti- pesticide, herbicide, and fertilizer resolution. I talked via email with Alderpersons Israel Del Toro (District 4) and Alderperson Alex Schultz (District 9) about the purpose of the resolution, whether or not the resolution effectively restricts to the point of banning the application of pesticides, herbicides, and fertilizers on private property, and some of unclear aspects of the resolution. I also had an opportunity to sit down and speak face-to-face with Alderperson Del Toro about not only those items but also the First Amendment issues associated with the resolution.
With his permission, I recorded our discussion. I’ve prepared a transcript of our talk and have also provided the audio. [Please note, there are a couple seconds of silence at the beginning of the recording.]
This particular resolution applies only to properties smaller than 5 acres, but I learned that Alderperson Del Toro is already working on a similar resolution that would apply to properties that are 5 acres and larger.
I also learned that this resolution was looked at by staff prior to its introduction, and Alderperson Del Toro received feedback from one member of the business community which prompted him to modify the resolution prior to introducing it by removing reference to a 9-foot buffer zone around properties.
In our communications, Alderperson Schultz expressed openness to making further changes to the resolution, particularly separating restrictions on fertilizers from restrictions on pesticides and herbicides. While Alderperson Del Toro expressed an expectation that this resolution would be changed during the committee process, it was not clear to me what changes if any he himself would personally support.
Regarding the restrictions laid out in the resolution, Alderperson Schultz said, “Our intent is not to restrict, by any modification of code, what property owners do on their own property, save to remind them of good application practices as defined by the EPA and other agencies […] [W]e obviously have some more work to do to define the expectations and the reach.” Alderperson Del Toro repeatedly stated that it was not a ban and suggested that the data I had indicating that historical windspeeds in Appleton were consistently above the 5mph maximum limit set out in the resolution for the application of pesticides, herbicides and fertilizer only referred to the prevailing windspeeds and he believed there would be times during the day when the windspeed dropped below 5 mph.
As written, this current resolution would ban the application of pesticides, herbicides, and fertilizers on terraces and sidewalks and within 250 feet of any site identified by the DriftWatch, FieldWatch, and BeeCheck state registry.
It would prevent the any spread of pesticides, herbicides, and fertilizer beyond the boundaries of a property onto either city property or a neighboring private lot.
It would also place severe restrictions on the conditions under which pesticides, herbicides, and fertilizer could be applied to private properties smaller than 5 acres by stating that those products “shall not be applied on any property during any rainy days (or potentially rainy weather) or on windy days (winds in excess of 5 miles per hour) or at temperatures above 80˚F (the point where these chemicals can become volatilized and ineffective).” The wind restriction alone, as written, would seem to effectively prevent any pesticides, herbicides, and fertilizer being applied at all during the spring, summer, and early fall months given that historical wind-speed records for the 54914 area code indicate that over the past two years there was only one day in July of 2021 when winds dropped below 5 miles per hour.
It would also require signage to be posted on any property treated with pesticides, herbicides, or fertilizer stating “the exact chemical compounds being applied to their lawns along with contact information for local poison control in case of bystander or pedestrian unintentional exposure”.
Any violation of these rules “may be subject to the same fines established for violation of existing sidewalk policy”. The resolution, however, did not specify what section of the code it was referencing when it talked about a fine, but Alderperson Del Toro did clarify to me that the fine would be under the city’s General Penalty provision which is up to $200 for a first offense and up to $500 for the second and subsequent offenses in addition to the cost of prosecution and the possibility of jail time if the fine is not paid.
This resolution was crafted by Alderperson Del Toro and co-sponsored by Alderpersons Vered Meltzer (District 2), Denise Fenton (District 6), Schultz, and Nate Wolff (District 12).
My perspective is that, while resolutions do often undergo changes during the committee and Council process and will not necessarily look the same at the end as when they started, the original resolution as submitted should be a fairly clear representation of what the alderpersons who sponsored it would like to see enacted into law. Based on that belief, I reached out to Alderperson Del Toro, as the primary author of the resolution, and asked him a number of questions via email which he answered.
QUESTION: After looking at historical weather data for Appleton, it appears the various restrictions the resolution places on pesticide, herbicide, and fertilizer application would effectively result in a blanket ban on the application of those chemicals on properties smaller than 5 acres. Was this the intention of the resolution?
ANSWER: This is NOT a ban on the use of personal lawn-care products. We are simply asking folks to be mindful of how much they use and when they spray. We also want our community to consider alternative methods of weed control that do not rely on toxic chemicals that run-off and contaminate our environment.
QUESTION: Banning the application of pesticides, herbicides, and fertilizer on properties smaller than 5 acres seems like a pretty strong action. Are there any specific studies or data you could point the public to as the reason for this resolution?
ANSWER: I have linked various pieces of data based pieces of evidence in the community discussion on NextDoor.com https://nextdoor.com/news_feed/?post=260631333 Feel free to check these sources out. They range from governmental DNR recommendations to reduce phosphorous loading and to court case settlements from Bayer (the producer and distributor of RoundUp).
[Note: here are all of the links he posted in that thread. I personally had been hoping for information more specific to Appleton and/or to the use of pesticides on residential lots, but these were all general sources.
- https://www.forbes.com/advisor/legal/product-liability/roundup-lawsuit-update/
- https://ehjournal.biomedcentral.com/articles/10.1186/s12940-020-00574-1
- https://www.epa.gov/nps/basic-information-about-nonpoint-source-nps-pollution
- https://www.jsonline.com/in-depth/archives/2021/09/02/dead-zones-haunt-green-bay-manure-fuels-algae-blooms/8100840002/.
- https://coastalscience.noaa.gov/science-areas/stressor-impacts-mitigation/hab-monitoring-system/cyanobacteria-algal-bloom-from-satellite-in-green-bay-and-lake-winnebago-wi/
- https://cumulis.epa.gov/supercpad/SiteProfiles/index.cfm?fuseaction=second.cleanup&id=0507723
- https://dnr.wisconsin.gov/topic/GreatLakes/GreenBay.html]
QUESTION: The resolution mentions fines, but it isn’t clear to me what section of the Municipal Code was being referenced or what the fines would be. How much would the fines be and what section of the Municipal code are they listed in?
ANSWER: This is a topic that is currently being considered by the Mayor’s staff. I will provide these details once we hear back from them.
QUESTION: The resolution is presented as being focused on education even though, as written, it would restrict, basically to the point of banning, the application of fertilizers and pesticides on most properties. What was the reasoning behind presenting it as an educational resolution instead of more clearly and explicitly specifying to the public that this resolution would severely curtail the ability of property owners to apply chemicals on their property?
ANSWER: Education and outreach is a major part of this resolution. Offering information for our city on eco-friendly alternatives for weed control is a major goal of this proposal. We want our city to commit to being good environmental stewards. This resolution does not ban or prevent folks from using chemicals on their lawns but we simply ask people to keep what they spray or spread on their property and that it not drift onto adjacent properties that do not belong to them. These are the best practice guidelines for spraying and spreading chemical fertilizers and pesticides.
QUESTION: The resolution includes a clause that would compel private citizens to post a message on their property that is dictated by the city. I would be interested in getting a better understanding of your worldview regarding freedom of speech, particularly as it pertains to compelled speech. Could you explain the sort of situations in which you believe it is appropriate for the government to require private citizens to say or post a government-mandated message?
ANSWER: Members of our community deserve to know when hazardous chemicals are spread adjacent to public right-of-ways. Especially in locations where direct skin contact or ingested by kids and pets playing on walking on grass. If our kids and pets are to exposed to cancer causing chemicals like glyphosates our citizens deserve to know which areas to avoid or be safe around. We ask folks to let us know how they treat so that if exposure does occur, we as a community have guidelines for treating or dealing with their exposure. Im sure you would like to know if and when you are exposed to something that your neighbor was spraying our using that may cause you or your loved ones unintended harm.
I had multiple follow-up questions.
- I did not understand how the resolution was not effectively a blanket ban in light of the wind speed, rain, and temperature restrictions it placed on the application of pesticides, herbicides, and fertilizer.
- The reasoning behind some of the restrictions did not make sense to me.
- I wanted to gain a better understanding of what kind of limits Alderperson Del Toro had regarding government compelled speech.
- I did not understand why the regular civil recourses currently available to property owners to deal with damage to their property was not already sufficient for handling neighbor disputes regarding pesticides, herbicides, and fertilizers.
In response, Alderperson Del Toro invited me to sit down with him and discuss my questions in person.
Again, here is the audio of our discussion as well as a transcript.
During our meeting, Alderperson Del Toro insisted that the resolution did not ban anything as demonstrated in this exchange.
ALL THINGS APPLETON: As far as I can tell, this resolution would essentially ban any—
ALDERPERSON DEL TORO: Nope.
ALL THINGS APPLETON: What? Okay, so…
ALDERPERSON DEL TORO: We’re not allowed to create resolutions that ban.
ALL THINGS APPLETON: Yes, but the things that you put in place are so restrictive that people would not be able to use them. So here, let me read…
ALDERPERSON DEL TORO: In your opinion.
ALL THINGS APPLETON: No, it’s not my opinion. It’s just—it seems like it’s fact.
We went through the text of the specific clause which read, “chemical fertilizers and pesticides shall not be applied on any property during any rainy days (or potentially rainy weather) or on windy days (winds in excess of 5 miles per hour) or at temperatures above 80˚F (the point where these chemicals can become volatilized and ineffective).”
While he explained his reasoning for wanting these restrictions in place, he did not explain how the restrictions did not result in a de facto ban, and, throughout our discussion he stated repeatedly that this resolution did not ban or prevent people from applying these products to their properties. For example, when I said that the rules in this resolution would prevent me from applying these chemicals to my yard should I want to he responded:
ALDERPERSON DEL TORO:
Again, not preventing. It’s just asking.
ALL THINGS APPLETON: Well, it would; I wouldn’t be able to do it.
ALDERPERSON DEL TORO: That would be your choice.
ALL THINGS APPLETON: Well, so I could do it and then run the risk of the city fining me because I didn’t meet all these things. That’s what I mean, when I say it would prevent me. Like, if I don’t want to get a fine, I would not be able to do this. Like I could do it and run the risk of getting a fine.
ALDERPERSON DEL TORO: This is not a ban; this is not a prevention. This is just making sure that you follow the guidelines and that you’re a good environmental steward.
ALL THINGS APPLETON: And the guidelines are so restrictive, I can’t do them.
ALDERPERSON DEL TORO: Then that is something you have to talk to about with the manufacturers, or the DNR.
In terms of the reasoning behind the various restrictions, the restriction on not applying products during rainy weather or potentially rainy weather was because, per Alderperson Del Toro, “rainy weather increases the rate of runoff into our waterways. So that would increase pesticide and fertilizer runoff into directly into our waterway. It’s you basically flushing money down, down the drain, sorry. And so we just want to make sure that what you apply stays where it is applied.”
I pointed out to him that there are multiple fertilizers that specify on their labels that they should be watered after being applied. I also told him that it was my understanding that it was a standard practice with a lot of gardeners to use a gentle rain to water their fertilizer in. That lead to this exchange:
ALL THINGS APPLETON: So you’re going to just ban it though, even if it—
ALDERPERSON DEL TORO: We’re not banning it
ALL THINGS APPLETON: If it was a gentle rain, you would not allow it to be watered in with the rain, even though apparently that’s a standard practice with a lot of gardeners.
ALDERPERSON DEL TORO: We want to make sure that you are following the rules on the label.
ALL THINGS APPLETON: Which doesn’t say necessarily that it has—
ALDERPERSON DEL TORO: It says to water.
ALL THINGS APPLETON: It says “water” which you can use rain for that also. And many people do.
ALDERPERSON DEL TORO: Again, the difference is controlled watering, which allows you to prevent the runoff versus uncontrolled watering, which you cannot estimate.
ALL THINGS APPLETON: Yes. But I mean, generally—I mean, you can look at the forecast and maybe see oh, it’s threatening thunderstorms versus this is just a 30% chance of rain. It’s going to be gentle. You know?
ALDERPERSON DEL TORO: That’s a bit of a gamble, and I think what we want to make sure people are doing are just following the guidelines.
Regarding the windspeed restriction, I told him that when I looked at historical windspeeds in Appleton in the last two years, there was only one day in 2021 where wind speeds dropped below 5 miles per hours.
Alderperson Del Toro responded that he thought I had identified the overall windspeed for the day but there would be times throughout the day when the speed subsided below 5 mph, “And so the idea there is just make sure you find the right window so that overspray does not happen. So you apply at the time, where you are not going to spray your chemicals onto somebody else’s property that does not want those chemicals.”
I pointed out that the rules in the resolution applied to all forms of pesticides, herbicides, and fertilizers, not just aerosols and asked him if he intentionally chose to have wind speeds apply to non-aerosols as well.
ALDERPERSON DEL TORO: No, the wind speed only really, really only applies to aerosolized and volatilized potentially chemicals. So…
ALL THINGS APPLETON: The resolution doesn’t say that though.
Alderperson Del Toro responded that the resolution was still a work in progress and that all language was up for debate and modification as it went through committee and came before the full Common Council.
Regarding the restriction on applying pesticides, herbicides, and fertilizers at temperatures above 80 degrees Fahrenheit, I told him that I looked at the labels of some products at the store and their guidelines did not necessarily warn against applying them at temperatures above 80 degrees. One said that, if it was applied when temperatures were over 80 degrees, it should be watered in right away and another had indicated it could be applied between 60- and 90-degrees Fahrenheit.
Alderperson Del Toro indicated that this restriction pertained to aerosolized products
ALDERPERSON DEL TORO: What, we wanna make sure is that aerosolized chemicals are not applied at temperatures above 80 degrees because then they become volatilized. And then you can’t control the spread of them. They are gonna end up in other people’s yards.
ALL THINGS APPLETON: But again, like, this paragraph does not distinguish between aerosolized and other ones, which is confusing and not really necessarily accurate. I guess it makes it look like you’re trying to ban it. Now you may not be planning to ban these, but, like, as written this would effectively in practice be a ban even if, theoretically, you could do it if you met all these guidelines, which you wouldn’t be able to do.
ALDERPERSON DEL TORO: We’re asking that you try your hardest to do that. And again—
ALL THINGS APPLETON: But people can’t do impossible things.
Alderperson Israel Del Toro (District 4) : And again the—nobody’s gonna go out there looking to give you a ticket. That’s not the goal of this resolution. If, however, somebody that does not want chemicals on their lawn and ends up with your chemicals on their lawn, then they have a venue by which to form a proper complaint.
In terms of penalties, it was actually surprisingly difficult to find out what the fines related to this resolution would be and under what section of the municipal code those fines would be levied. In fact, those things continue to be somewhat murky. During our interview, Alderperson Del Toro indicated that the city would levy fines based on the pet waste ordinance. In a follow-up email he said that the enforcement authority was found in Section 3-2 and the actual rule under which it would be enforced was Section 3-14.
Confusingly, Section 3-14 seems to pertain only and explicitly to animal waste and the removal of animal waste. It’s very difficult to see how a plain reading of that section of the city code could be used to restrict overspray and spillover of pesticides, herbicides, and fertilizer.
As laid out in Section 3-2, fines related to these violations would fall under the city’s General Penalty provision which is between $1 and $200 for the first violation and between $10 and $500 for the second and subsequent offenses in addition to the cost of prosecution. Additionally, a person who defaults on the payment of the fine and prosecution costs “shall” be imprisoned in the county jail.
I asked Alderperson Del Toro why currently existing civil remedies such as going to small claims court, filing a lawsuit, or filing an insurance claim for property damage was not adequate, to which Alderperson Del Toro responded, “I don’t think people are necessarily aware of what resources they have or do not have.”
He stressed that “the very first point of this resolution, and probably the strongest point of this resolution is an education campaign. It’s not really about setting guidelines or bans. It’s just by asking, asking our community to think about what you’re spraying, make sure you’re not exposing others to it, and educate yourself on the best practices of lawn care.”
When I pointed out that out of 8 paragraphs, only one of them pertained to education and the remaining 7 implemented restrictions on how people use these products, he responded, “Absolutely, and we chose to put that education paragraph first, because this is an educational campaign. This is focused on making sure that we have educational guidelines. As for the number of additional paragraphs that go into the details, again, we are trying to be as clear as possible, and as detailed and as meticulous as possible to make sure that those guidelines are well established and well regulated.”
I asked him if this resolution had to be enforced with a fine or could they make it purely about education. That lead to the following exchange:
ALDERPERSON DEL TORO: That’s why education is the primary component, the first component of this resolution.
ALL THINGS APPLETON: But it is one eighth of it.
ALDERPERSON DEL TORO: It is the first.
ALL THINGS APPLETON: It is one eighth of the resolution.
ALDERPERSON DEL TORO: It is the most—I’m telling you on the record that this is the most important part of the resolution. If we all just—
ALL THINGS APPLETON: Would it be okay, if people ex-ed out the other seven, and it just was the first one because that is the most important—like, would that be a reasonable compromise that you could live with?
ALDERPERSON DEL TORO: Hmm. There would have to be justifiable reason for ex-ing out the remaining arguments that say follow the best rules possible. I’m always willing to compromise. I’m always willing to modify. This just got the ball rolling.
Toward the end of the interview, we turned to the First Amendment issues related to the resolution and the fact that the resolution would require private citizens and property owners to post signage on their land disseminating a government mandated message. I had brought this up in my emails to him, and I had actually thought this was the reason why he wanted to meet in person because it was a somewhat more philosophical, though I believed still very relevant, discussion point that was perhaps better suited for an in-person back and forth conversation.
ALL THINGS APPLETON: I guess we had also gotten into a discussion about, you know, the First Amendment issues about this, where you had said that—um, let me see what was your, I guess, that you want to make [people who apply pesticides, herbicides, or fertilizer] post signage that basically presents a city mandated message. And under the reasoning that “I’m sure you would like to know if and when you are exposed to something that your neighbor was spraying or using that may cause you or loved ones unintended harm.”
ALDERPERSON DEL TORO: Correct.
ALL THINGS APPLETON: So is there kind of any limiting principle to that? I mean, because there are any number of things that my neighbor could be doing that I may potentially be exposed to that I don’t know about.
ALDERPERSON DEL TORO: Can you provide some examples?
ALL THINGS APPLETON: Well, as I said, in my email to you, like, you know, gun owner at the home, you know, they have guns. Should they be forced to post signage saying they have guns? Or if so if—I mean, I know we have some people in the city who—
ALDERPERSON DEL TORO: We’re not talking about this here.
ALL THINGS APPLETON: —have tuberculosis. Should they be required to let people know when they go out in public that they have tuberculosis?
ALDERPERSON DEL TORO: That’s not what this is arguing, right? We’re asking people to post signage specifically regarding about the chemicals that being applied on their lawn. That’s it.
ALL THINGS APPLETON: Yes, but where does that end? You know, what are you comfortable with requiring people to say?
ALDERPERSON DEL TORO: I’m not going to comment on that any further, I think what I’ve said to you is exactly what I mean. We want to make sure that if you’re applying a dangerous known carcinogen into the ground, and your pets or loved ones could be exposed to it, you have a right to know. The end. That’s it. That’s it. That’s the point.
ALL THINGS APPLETON: That’s—this is the limiting principle? You will do it for this and nothing else?
ALDERPERSON DEL TORO: What do you mean?
ALL THINGS APPLETON: Like require people to post or say city mandated messages in other areas, or you are only going to do it for this?
ALDERPERSON DEL TORO: I am exclusively focused on this resolution at the time.
ALL THINGS APPLETON: But in the future, you may be in favor of other mandated compelled speech?
ALDERPERSON DEL TORO: That is an inappropriate question, and not something I’m going to respond to.
ALL THINGS APPLETON: Why? Why is it inappropriate?
ALDERPERSON DEL TORO: I think you’re trying to put words here in my mouth. I’m focused exclusively on this resolution and the rules that are stated on this resolution. If you want to talk about broader political beliefs, there’s a different time for that, if you—but I’m not going to answer any of those questions at this point [there were a couple more words at the end of his sentence but they weren’t clear on the recording.]
ALL THINGS APPLETON: I had told you in my email, I was kind of interested in your idea of freedom of speech, broadly speaking.
ALDERPERSON DEL TORO: And my response in my email will be sufficient.
In addition to communicating with Alderperson Del Toro, I reached out to the four other co-sponsors of the resolution, Alderpersons Meltzer, Fenton, Schultz, and Wolff, and asked them the following question: “After looking at historical weather data for Appleton, it appears the various restrictions the resolution places on pesticide, herbicide, and fertilizer application would effectively result in a blanket ban on the application of those chemicals on properties smaller than 5 acres. Were you aware of this when you signed on to the resolution, and was this your intention when you cosponsored the resolution?”
Alderpersons Meltzer, Fenton, and Wolff did not respond.
Alderperson Schultz did reply and said, “I did not conduct an analysis of annual acceptable weather conditions before co-signing the resolution.” He also stated, “Bear in mind that this resolution with restrictions applies ONLY to the terraces and an as yet to be determined buffer zone between properties, not to the entire property. The buffer zone stated in the resolution is for aerosol applications only.”
I responded back saying, “I don’t understand what you mean when you say, ‘this resolution with restrictions applies ONLY to the terraces and an as yet to be determined buffer zone between properties, not to the entire property.’
“The resolution clearly states, “BE IT FURTHER RESOLVED, that chemical fertilizers and pesticides shall not be applied on any property during any rainy days (or potentially rainy weather) or on windy days (winds in excess of 5 miles per hour) or at temperatures above 80˚F (the point where these chemicals can become volatilized and ineffective).” Clearly this must be referring to private properties, because a previous paragraph already explicitly bans the application of pesticides and fertilizers on public property. Furthermore, historical windspeed data indicates that the wind speed in Appleton basically never drops below 5 mph (https://www.visualcrossing.com/weather-history/54914/us/2022-04-01/2022-08-13) so the restrictions listed above would effectively ban the application of pesticides and fertilizers on private property within the city of Appleton. Do you support that?”
Alderperson Schultz responded, “Our intent is not to restrict, by any modification of code, what property owners do on their own property, save to remind them of good application practices as defined by the EPA and other agencies.
“The goal is to reduce potentially hazardous chemical applications in favor of organic compounds or other control mechanisms to reduce what ends up in our groundwater and the Fox River.
“So, given your read, we obviously have some more work to do to define the expectations and the reach. This is a long way from coming to a vote and all of this will come out in the process.
“We certainly have to address the way herbicides and pesticides are lumped into the same control category as fertilizers.”
[It remains unclear to me how this resolution as written is not effectively a ban on the application of pesticides, herbicides, and fertilizer on properties under 5 acres in light of the numerous restrictions it places on the application of those products as well as the fine it would levy. It also remains unclear to me why this resolution was presented as an educational resolution when 7 of the 8 clauses include restrictions on the use of these products that will be enforced with multi-hundred dollar fines per incident. I also don’t understand why it was so difficult to find out what the fine was or under what section of city code it would be levied. It’s also very surprising to me that this resolution was run past city staff and yet nobody seems to have pointed out that based on a plain reading of the language in the resolution this would result in people not being able to treat their yards with pesticides, herbicides, and fertilizer a vast majority of the time. Nor do I understand why it has been so difficult for the alderpersons who sponsored this resolution to be able to clearly explain whether or not that was their intent.
Needless to say, I look forward to seeing staff recommendations on this resolution and watching the discussion when it comes before committee.]
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