Industry Sues Wisconsin County For Ban on Lawn Fertilizer
(Beyond Pesticides, January 5, 2005) To improve lake water quality and aquatic ecosystems, the Dane County Board of Supervisors, which oversee 61 villages, towns and cities in Wisconsin including Madison, passed a local ban on the use of lawn fertilizers containing phosphorus that went into effect January 1, 2005. The lawn chemical industry has struck back with a federal lawsuit against the County.

The group of fertilizer retailers, lawn-care businesses and trade groups suing the County allege that the ordinance is pre-empted by federal and state laws and violates the equal protection and free speech clauses of the U.S. and Wisconsin constitutions, according to the Associated Press. Pre-emption means that local authorities are prohibited from implementing environmental or health regulations that are stricter than state or federal laws. (See Beyond Pesticides List of pre-emption laws by state.)

Madison Mayor Cieslewicz’s office and Dane County Executive Kathleen Falk have said that the lawsuit will be fought in order to restore and protect Dane County lakes.

Chemical lawn fertilizers are harmful to the environment due to their high concentration of phosphorus and nitrogen and required use of pesticides. Rainwater run-off from lawns treated with synthetic fertilizers flow into lakes and other waterways causing excessive algae and plant growth and depletion of oxygen needed for the survival of fish and other aquatic organisms.

According to AP, the lawsuit points to several other larger contributors of phosphorus run-off such as dog and other animal waste and research by the O.J. Noer Turfgrass Research Center of the University of Wisconsin-Madison that contends poorly kept, unfertilized lawns contribute 40 percent more phosphorus to runoff than well-maintained, fertilized lawns.

In its defense, the county is expected to argue not only that it has programs in place to try to address other sources of phosphorus, but also that it must take action where it can to prevent any additional amount of phosphorus contamination, such as from synthetic fertilizers. This approach in environmental regulation is common. Regulation of pollution is most effective when it targets the most controllable sources. For example, arsenic contamination of drinking water is a continuing problem nationwide. The contamination comes from both natural and man-made sources. Because natural sources are extremely difficult to alter, regulation is best aimed at the man-made sources, regardless of which contributes more arsenic contamination.

The ordinance:

• Prohibits use of phosphorus-containing lawn fertilizers, unless a soil test shows that phosphorus is necessary.
• Prohibits retail display of phosphorus-containing lawn fertilizers.
• Makes clear that golf courses, farmstead lawns, and commercial applications to lawns are subject to the ordinance.
• Exempts newly-established turf and lawns during their first growing season.
• Exempts fertilizers intended primarily for garden and indoor plant application, and fertilizers applied to trees and shrubs and for agricultural uses.
• Clarifies that yard waste compost and biosolids intended primarily as soil amendments are exempt from the ordinance.
• Specifies penalties for ordinance violations; with higher penalties for commercial/retail violations.
• Specifies that the Environmental Health Section of the Public Health Division, Dane County Department of Human Services, will enforce the ordinance.