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From January 23, 2006                                                                                                        

Court of Appeals Upholds Phosphorus Ban in Wisconson
(Beyond Pesticides, January 23, 2006)
The US 6th Circuit Court of Appeals upheld an ordinance last month banning phosphorus use in lawn fertilizers in Dane County and Madison. The ban was originally enacted in 2004 to reduce the amount of phosphorus runoff into Madison’s lakes and diminish the algae blooms that plague the lakes each summer.

Fertilizer manufacturers, with CropLife America Inc. as lead plaintiff, appealed the ban, claiming that they had to reconstitute their “weed and feed” and weed killer formulas to eliminate phosphorus to meet the restrictions. Furthermore, the plaintiffs argued that local government couldn’t regulate the fertilizers since state law controls the use of pesticides and local law can’t supersede state law. (See Beyond Pesticides’State Pre-emption factsheet for more information on state pre-emption of local ordinances)

Judge Richard Poster, who wrote the decision for the Court of Appeals, rejected this argument. He said that since the “weed and feed” products are a fertilizer-pesticide mixture, and that since local governments can regulate fertilizers, the combination can be regulated by local ordinances. The ruling is a major victory for citizens looking to improve the quality of their local environment.

The ban was originally enacted because rainwater runoff from lawns treated with phosphorus would flow into lakes, causing excessive algae growth, decreasing water clarity, and turning lakes green. Decaying algae also depletes oxygen in water, hurting fish. All lawns in the area tested by expert witnesses were already significantly over healthy phosphorus levels, even those that had not been treated by phosphorus-containing fertilizers.

The law itself prohibits the use of phosphorus-containing lawn fertilizers unless a soil test shows that it is necessary. It also prohibits retail display of phosphorus-containing lawn fertilizers. The ordinance makes explicit that golf courses, farmstead lawns, and commercial applications to lawns are subject to these rules as well. Exemptions to the ordinance include newly-established turf and lawns during their first growing season, fertilizers intended primarily for garden and indoor application, fertilizers applied to trees and shrubs, agricultural uses, and yard waste compost and bio-solids intended primarily as soil amendments.

For more information about this case, see its coverage in Madison’s newspaper, The Capital Times, and on the Dane County Office of Lakes and Watersheds website. Also see our Daily News articles about the grassroots effort to promote safe lawn care in Madison that prompted this ordinance, and its original and federal appeal.

TAKE ACTION: The Madison case affirms that citizens do have the right to protect their waters from chemical-based lawn treatments. Join the National Coalition for Pesticide-Free Lawns and encourage your community to pass similar bans on phosphorous-containing fertilizers, especially weed and feed products, which are formulated with toxic pesticides. For more information on this issue and what you can do about it visit Beyond Pesticides’ Lawns and Landscapes program page.

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