Staff Report Regarding Anti- Pesticide, Herbicide, And Fertilizer Resolution Is Released – Reveals Widespread Legal And Practical Issues With Resolution

Resolution 1-R-23, the anti- pesticide, herbicide, and fertilizer resolution was introduced on 02/15/2023. The resolution was authored by Alderperson Israel Del Toro (District 4) and co-sponsored by Alderpersons Vered Meltzer (District 2), Denise Fenton (District 6), Alex Schultz (District 9), and Nate Wolff (District 12).

When the resolution was introduced, it was referred to staff for review ahead of being brought before the Municipal Services Committee. The staff review is now complete and the final report has been issued. The report, which features several sub-reports from various departments, reveals wide-spread issues with the resolution.

Per the summarizing memo from Mayor Woodford:

Many of the resolution’s proposed actions on the use of lawn and homemade products appear to:

•Be preempted by State or Federal law
•All but ban the use of certain products due to the restrictive environmental conditions required for application; the same conditional requirements also present challenges for enforcement
•Potentially contradict some products’ labels, especially regarding temperature ranges and application techniques
•Require the addition of numerous City staff positions, both for enforcement and for facilities and grounds maintenance
•Create redundant reporting and compliance mechanisms already provided through State and Federal agencies.

The report from the City Attorney’s Office indicates that of the resolution’s 8 “Be It Resolved” statements, all but the first, which pertains only to education, are, in one way or another, in contravention of state or federal law and that the state of Wisconsin strictly limits the ability of municipalities to regulate pesticides locally. The city does not even have the authority to ban the application of pesticides on the city-owned terraces and sidewalks because “they are part of the public right-of-way and subject to automatic reversion to adjoining property owners in the event of a street vacation.”

The Health Department recommended against local regulations regarding lawn care chemicals because the application of pesticides and herbicides was already, “a highly regulated activity at both the State and Federal levels through rigorous regulation and enforcement.” Health Officer Sepers included a four-page attachment listing the numerous State and Federal regulations that were already in place.

The report from the Department of Public Works started off with three bullet points listing potential benefits which were then followed by 9 pages discussing relevant considerations regarding city operations and enforcement. Some of the issues raised included:

• The inability to apply fertilizer to establish turf areas in construction projects such as on terraces.
• The negative impact to the city’s ability to combat the Emerald Ash Borer, the Spongy Moth, and wasps as well as other invasive species.
• Difficulty in maintaining the appearance of planting beds on College Avenue or the appearance of sidewalk joints and cracks in some areas of downtown.
• Increased cost to maintaining stormwater management sites that are within the public right-of-way
• The weather condition standard for applying lawncare products “does not reflect the science behind EPA label standards specific to each pesticide. For example, Reid Golf Course uses a pesticide spray that requires minimum 3mph for proper dispersal. This paragraph would likely create an unreasonably small window for use of that chemical.”
• The definition of  “potentially rainy weather” was unclear and did not take into consideration that some chemicals required being watered in and benefited from being applied on days when rain was expected
• The very limited days within a year when the chemicals could be applied under the restrictions in this resolution

Staff identified numerous issues that would arise with enforcement, particularly noting that current city staffing levels were not sufficient to actively inspect sites to identify violations. Even a complaint-based enforcement would impact staff time and cost. Additionally, there would be costs associated with the state reporting requirements associated with the regulations and their enforcement.

The Parks, Recreation, and Facilities Management Department opened their memo by stating, “Upon discussing the proposed resolution further, our department believes the necessary laws and enforcement already exist through other agencies. Our department follows these laws through certifications and training. We believe this resolution would conflict with current laws and procedures for application and also have an impact on providing the level of turf management we recommend based on our understanding of the publics’ expectations.

“In addition to the impacts that were discussed in our meeting with Alderperson Del Toro we believe there are many, many more we have not even thought of.”

They noted that “The resolution has conflicts with chemicals we currently apply. For example, Certain products need to be watered in (pre-emergent herbicides, wetting agents, fungicides, fertilizer, etc.), applying prior to rain events reduces irrigation use which is a very hot topic of golf’s usage (CA, AZ especially). Wind speed, label does not want herbicides sprayed with less than 3 mph wind and over 15 mph. 5 mph wind speed would be extremely difficult to impossible to coordinate. I personally have an app on my phone for tracking windspeeds while we are out applying. 2 of the 3 labels I had in the file say do not spray above 85 degrees, one says 80 degrees but that product is a bit “hotter” compared to the other 2. Big difference between 80 and 85 when applying depending on soil moisture and plant health but that gets into the technical side of what we do. Again, label covers all these points.”

They also believed the resolution, if passed, would result in legal action being brought against the city potentially both by turf management businesses who “would be significantly impacted financially” by the regulations as well as private property owners who they believed “would overwhelmingly object to this resolution.”

There would also be significant impacts to the Parks, Recreations, and Facilities Department’s operations. As outlined in the memo:

• The department maintains over 600 acres of turf including facilities, parks and numerous boulevards, triangles and other misc. areas which would be affected by this resolution. The lack of herbicides would require alternative means and labor which would not be cost effective nor feasible.
• On our grounds we have numerous miles of fencing which requires maintenance to keep invasives from growing into the fence line and damaging the fences.
• The department maintains over 1.2 million square feet at over 70 locations requiring various degrees of pest control. There are no feasible alternative means and pest damage can be considerable including mice, ants, hornets, spiders, etc.
• The department already has a Turf Management policy that the Common Council approved. This policy specifies the level of turf management necessary to meet the expectations of our Community. In many areas such as downtown parks, ball diamonds, sidewalks, fence lines, etc. require a greater level of management and use of herbicides and pesticides. To meet expectations without the use of chemicals would require substantially more labor resulting in significantly increased budget.
• Reid Golf Course could lose substantial revenue if not for the excellent playing conditions provided. This includes areas affected by this resolution.
• Hiring of part-time labor is difficult and the cost is increasing. In addition, students only can work a limited period between mid-May to mid-August leaving considerable needs in the spring and fall. The restrictive use of herbicides and pesticides would require significantly more labor for trimming, weeding, etc.

They also noted that the term “pesticide” covers more than just herbicides and insecticides and includes fungicides and miticides, and they believed the resolution would been to be more specific as to what it was intended to restrict.

They included a list of the parks within the city as well as their size. Several parks were less that 5 acres in size and would fall under the rules of this resolution including Arbutus Park, Ellen Kort Peace Park, Jaycee Park, Lions Park, Lutz Park, Pioneer Park, Providence park, Veterans Park, and Vulcan Heritage Park.

I noted several of these issues myself in previous posts and discussed them with Alderpersons Del Toro and Schultz. At the time, Alderperson Schultz expressed some openness to making changes to the resolution in light of the issues I raised with him, but while Alderperson Del Toro acknowledged that the resolution was likely to change it was not clear to me what if any changes he himself would personally support. It remains to be seen how the author and co-sponsors of the resolution will respond to this very thorough staff report and the numerous issues they identified.

You can download a copy of the complete report here: