2005 LEADERSHIP ISSUE: Grassroots Issues: An Industry Defense Case Study

Madison, Wis., in particular and the surrounding county of Dane in general have a long history of being extremely “politically correct” and full of hotbeds of environmental activism. A couple of relatively recent elections to key positions created the perfect storm to which the desire to ban phosphorous in all lawn fertilizers was spawned. Let me lay out the players involved and the chain of events they initiated.

Kathleen Falk, a member of the activist group called Environmental Decade and an attorney within the former office of the Public Intervenor, was elected Dane County Executive about five years ago. The Public Intervenor personnel acted like Don Quixote’s in that they could pursue any injustice they felt was occurring within any state governmental branch. They had all but free rein to try to sue various entities to try to make policy changes and about 90 percent of their efforts were geared towards environmental activism. When this department was finally abolished by a sensible legislature and governor about 10 years ago, Falk decided to enter the political arena. Upon winning the very powerful position of Dane County Executive she immediately began to push many of her misguided environmental initiatives.

In 2003, she gained a very strong ally when Dave Cieslewicz, the former head of an environmental activist group called 100 Friends of Wisconsin, became Mayor of Madison.

Almost immediately they gave marching orders to their staffs to begin the concurrent process of getting both a county resolution and a city ordinance passed that would ban the use of phosphorous on home lawns. Madison is a gorgeous city that sits amongst four lakes of which two are quite large, Mendota and Monona. Keeping them as weed and algae free as possible has long been a goal of all of the citizens of this area. Over the last few years, there have been increased amounts of weeds as well as algal blooms. There was a report of a dog dying due to inhalation of the poisonous blue-green algae a year ago. The stench of decaying weeds washing up on the shore also added to the dismay of many. This has caused swimming, boating and aesthetic problems for lakeshore owners and all users of our precious lakes creating much frustration amongst Dane County residents. Thus the mood was right to begin an emotional plea, along with including some cherry picked science, to get the ban of phosphorous in place.

They immediately got the media involved by calling a press conference on the lakeshore and announcing their intentions to try to save our lakes. Our afternoon daily newspaper has always been proud to call themselves “progressive” and thus was an immediate, biased sign-on to the cause. The morning daily has a significantly higher readership and is considered more moderate/conservative, but it’s editorial staff leans a little left when considering environmental issues. Thus both papers definitely were more in the camp of the misguided. The University of Wisconsin is located in Madison and has the most well-known and respected Limnology Department (study of lakes) in the country. The advocates enlisted the help of a Ph.D. candidate from Limnology – Elena Bennett – to do all kinds of public speaking and research sharing promoting the phosphorous ban. Dr. Steve Carpenter from the Limnology Department also made a number of comments and released supporting articles to the media, the City Council and the Dane County Board. Falk’s staff also brought in a hired limnology expert from the Minneapolis area – John Barten – who had research showing that other lake communities had shown distinct improvements in water quality after banning phosphorous. They then enlisted various advocacy groups, such as the Friends of Lake Wingra, Yahara Fisherman’s Club, lakeshore homeowners and paddling groups. These groups were to not only write letters to the editors at newspapers and to various elected officials but to also show up at public hearings in support of the ban.

Once the needed players were pretty well in place for the supporters of the ban, it was time to get the proposal introduced. Andy Olsen, a liberal member of the County Board soon introduced it with a lot of support from fellow Supervisor Brett Hulsey, who just happens to be the local head of the Sierra Club. Over at the City Council, Greg Markle proposed the ordinance banning phosphorous. Once again there were many stories n the local papers talking about this new proposal and how it may help clean up our treasured lakes.

In the meantime, those of us who were pretty clear that a small amount of available phosphorous was necessary for proper turf nutrition, due to past and recently presented research, began to get better organized for the oncoming debate. Brian Swingle, executive director of the Wisconsin Green Industry Federation (WGIF), became the coordinator of the overall effort and the most visible spokesperson. The WGIF is a federation whose intent is to protect and promote the best interests of the various professional groups involved in the Green Industry in Wisconsin. It is made up of more than 700 members who are also members of their individual professional groups: Lawn Association of Wisconsin Network, Wisconsin State Nurseryman’s Association, Wisconsin Landscape Contractors Association, Commercial Flower Growers of Wisconsin (CFGW), Wisconsin Sod Producers Association and Garden’s Beautiful Garden Centers.

Terry Kurth, chairman of the Legislative Committee of the WGIF and Ed Knapton of the CFGW helped spearhead the turnout for public hearings that were to be coming up as the city ordinance and county resolutions moved forward. It was immediately recognized that we needed to get some of our UW-Madison turf researchers involved in giving their opinion on whether banning phosphorous was a good idea. Dr. John Stier, UW Turf extension specialist, and Dr. Wayne Kussow, soil scientist with many published research papers on nutrient runoff from turf were both convinced that they needed to give unbiased testimony on the issue. The Wisconsin Golf Course Superintendents Association was also extremely helpful in getting people to testify and to write letters as needed. We also got Kurt Steinke, a Soils Department Ph.D. candidate, to give written and verbal testimony on his research on nutrient runoff issues from turf areas. Knowing that a dangerous precedent was being set, Jim Skillen from CropLife America gave great testimony on the need for phosphorous to be available for turf vigor. He also kept telling any local official who would listen that any local ordinance or resolution banning phosphorous would not only be misguided but also illegal due to non-compliance with the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). He also felt it unfairly restricted fair trade. 

As you can see from some of the parties mentioned in the previous few paragraphs, this created some interesting conflicts of opinions. You had two different Ph.D. candidates jousting on the issue based on their research findings. You also had the Soils and Horticulture Ph.D. turf experts not agreeing with the way the findings were forthcoming out of the Limnology Department and the so-called water quality expert out of Minnesota. This is not something that is seen that frequently on a public-debated issue and certainly to my knowledge had never happened within our industry before this conflict.

The timetables of the city ordinance banning phosphorous and that of the county were running roughly two weeks apart. In essence both proposals were the same with the exception that initially the county resolution would also in effect ban the use of organics because they contain phosphorous as well. The city ordinance had an exclusion of organics being banned.

Let me now tell you of the main arguments for banning phosphorous in turf fertilizers which came across as quite effective. Elena Bennett, the Limnology Ph.D. candidate, had gone out and soil tested more than 100 lawns in the Madison area (some just happened to be of the supporting alderpersons) and found that all had sufficient levels of phosphorous available and thus did not need phosphorous from other sources. The rule changes did allow for applying phosphorous where tests showed that phosphorous was below accepted available amounts or in the case of a new seeding. Dr. Carpenter claimed that he felt that by banning phosphorous in lawn fertilizer there would be two to three fewer algae blooms in a typical summer on our Madison lakes. In effect, lowering this nasty occurrence by about 25 to 30 percent. This in turn would greatly reduce the chance of any pet or human getting sick or dying due to being exposed to blue-green algae. They also claimed that weed growth would be reduced from less available phosphorous in our lakes due to reduced runoff from yards.

From our standpoint, we agreed that most lawns do not need a lot of phosphorous but there are times that it becomes available to plant uptake and therefore 3 percent phosphorous should be the maximum allowed in fertilizer. We also stated that allowing organics to be used and not inorganic sources was counter-productive to their argument. The ratio of nitrogen to phosphorous in an organic fertilizer is generally either 2:1 or 3:1 (6-3-0 or 6-2-0, etc). This means that to get one pound of nitrogen down at the time of fertilizing you will be applying either one-third or one-half of a pound of phosphorous as well, which Bennett’s soil tests show would be excessive. If allowing a 3 percent maximum of phosphorous in an inorganic fertilizer (24-3-16, etc.) the resulting phosphorous amounts applied would be considerably less. The Madison and Milwaukee Sewerage Districts both manufacture fertilizers out of recycled human waste and therefore lobbied hard for the organic exclusion. They did eventually get it in both city and county proposed ban versions.

We shared research from both local and national experts that showed little or no runoff occurs from properly fertilized turf. We showed statistics that most of the phosphorous entering our lakes was from pollen (majority of pollen is phosphorous), farms, leaves degrading and exposed urban soil runoff from thin, non fertilized lawns and areas where soil is bare due to new construction. We showed research that runoff of phosphorous from lawns is not due to fertilizer runoff but due to erosion of soil particles due to thin or no turf. Those soil particles eroding into the lakes carry phosphorous that has become affixed to them and not as readily available to the plants. If the turf had become kept in a thicker, more vigorous condition this problem would not have occurred or at least been deemed negligible. Quality research had shown that most phosphorous runoff came from decaying leave matter from both trees and grass in late fall, winter and spring – not the times when fertilizer was being applied. Thus banning of small amounts of phosphorous being applied would have minute or no positive end results. Even the limnology experts, when pushed, admitted that in the whole pie chart, best case scenario, banning phosphorous from lawn fertilizers would only have a .5-1 percent affect on phosphorous entering our lakes. We handed out copies of the articles that RISE and CropLife had put together on the value of turf in increasing our quality of life and it’s positive effects on our environment. We had stated that we were the real “active environmentalists” on this issue as this ban would not cost us any more money but actually save us a little on product cost due to not having to pay for the phosphorous content. We told all who would listen that not allowing phosphorous in the fertilizer would eventually cause a thinning of turf thus allowing more runoff of phosphorous carrying soil sediment.

At the initial public hearings before various committees for both the city and county we had people giving excellent testimony using the above arguments. We did a very good job of having more of our people at these hearings than did the activists, which really was a first.

There were solid arguments made by both sides of the issue. Some dirty politics were being played by those who were pushing the ban. Brian Swingle, a registered lobbyist, was told by a Madison city staffer that he didn’t have to register with the city as a lobbyist. When an alderman became aware that he hadn’t registered, and that indeed a city ordinance required it, he sought financial fines. A staffer for another one of the proponents subliminally threatened Dr. Kussow that he would be fined for testifying without being registered as a lobbyist. As a UW Professor his job is to share information, just like the limnology professor and his Ph.D. candidate. The other side’s experts were not threatened. Both sides actively jockeyed for sound bites with the media that was there to cover the hearings. Whenever Brian Swingle or myself would see a media person interviewing one of the proponents, we would stand near by, listen and then go up to give a rebuttal to the reporter. There was much political pressure “to look green” to the readers, listeners and viewers of the media coverage.

There were a number of other things we learned as this process unfolded. Most committees, with the chairs appointed by the Mayor and County Executive, were “kangaroo courts” who were going through the legal process but whose majority of members already had their minds made up to ban phosphorous. We learned how to do some procedural maneuvering that delayed the process but ultimately couldn’t stop it from coming to a vote. Our group met before various hearings started to set up an order of speaking so that we weren’t redundant with our points and that we had a “cleanup man.” I’d wait till the end of the speakers before talking so I could rebut any new arguments the proponents brought up at that hearing. We made sure many of us attended an increased amount of political fund-raisers to enhance our image as players in the game of politics.

After all delaying maneuvers were exhausted regarding the city ordinance, it invariably came time for the city council to have discussion on the proposal and take a vote. We knew this council was stacked in favor of proceeding with the ban but at least we had a number of alderpersons speak on the detriments of its passage. Ultimately a vote was taken and it passed in February of 2004. At the end of the previous year, our Weed Man franchise had made the decision to take an early order opportunity of fertilizer and decided it should be of the phosphorous-free variety. We did this because we had no idea if the misguided electorate would make a potentially passed ban on phosphorous effective immediately after its passage. The ordinance became active Jan. 1, 2005.

Now the attention of the fight swung hard to the upcoming vote at the county level. We knew if we could get compromise language allowing a 3 percent maximum amount of phosphorous in lawn fertilizer used in Dane County this would supersede the recently passed City of Madison ordinance banning phosphorous. I went and took pictures of thin turf, exposed soil areas and piles of leaves that were all located in city or county parks near the lakeshore. The point being driven that why not first clean up your own problem areas before attacking someone else’s proper environmental practices.

At Weed Man in Madison, we sent our customers all a letter showing the misguidance of the city’s action in banning phosphorous and included comments from Dr. John Stier on why the 3 percent usage of phosphorous should be allowed. We asked them if they could help by contacting their Dane County Supervisor and telling them to support the compromise language of 3 percent phosphorous.

Finally, it came to the evening of the actual final public hearing, supervisor debate period and eventual vote of the County Board. In anticipation, we had organized a busload of green industry supporters to come in from the Greater Milwaukee area and had a large number of friends, relatives, neighbors and customers living in Dane County show up in support of the compromise language. They all did a fantastic job of giving verbal and/or written testimony and any non-biased observer would have been moved to vote for the compromise instead of the outright ban. Alas, back door political maneuvering and the emotion or science argument once again won out. Brett Hulsey, the Dane County board member who works for the Sierra Club, even had the audacity to go up to Brian Swingle and say that they already had the votes necessary for the ban. This obviously made a mockery of why the testimony efforts were even made and many upon hearing this were infuriated. There was an overall consensus that though the vote wasn’t going to go our way, we had many new contacts and friends amongst the electorate, gained their respect and had created a much stronger green industry organization than what we had when the battle began.

When the final vote was taken at about 1:30 a.m. the resolution to ban phosphorous in lawn fertilizer (with the exception of being able to use it for new seeding or overseeding) was passed. We had already been in discussions with RISE and CropLife on whether or not to seek a lawsuit to overturn the resolution if it passed. As I mentioned earlier, Jim Skillen with CropLife had said that their attorneys felt it was illegal due to FIFRA and interstate commerce laws. Upon discussion it was decided that the lawsuit would go forth and that about 12 to 15 national and local plaintiffs would sign on. It is a cross section of agricultural groups who are worried about the precedent being set as well as many from the green industry. I am one of the plaintiffs contending harm due to this lawsuit and had to file a court declaration to that effect with the help of our group’s attorneys. We had asked that it go to a federal judge, not a county one, due to our objections to the legality being based on federal laws. We felt our odds were better with an appointed federal judge also rather than a periodically elected county judge. The good news is that it was assigned to a Madison’s federal bench but unfortunately it went to Judge Barbara Crabb, a much more liberal judge than her alternative. Both sides asked for an expedited opinion from the federal judge and we received that back in July stating that the county resolution was legal. Her reasons why left much to be contested so therefore upon further discussion it was decided to appeal her decision. We are currently in that process. We also have decided to hedge our bet by also trying to get state preemptive language passed regarding fertilizer and seed use. Wisconsin currently has preemptive pesticide language that allows only the state to make rules on pesticide limitations beyond those of FIFRA. This disallows any local unit of government passing any rules or ordinances that are tougher than the state’s. We have currently drafted similar language for fertilizer and seed preemption laws and it is being passed around the capital by both traditional agricultural groups, those of us in the green industry and our hired lobbyist. We hope to have this in place before the next legislative session (which is currently meeting) is concluded.

In summation, there’s an old expression that goes like this, “It isn’t important how many times you get knocked down in life, but you are judged by how many time you get up.” We may have lost an early battle or two but we in the agricultural arena of Wisconsin will continue to get up and fight misguided legislation whether local or state initiated.

Terry Kurth is the director of development for Weed Man USA, and has 25 years of lawn care experience. He can be reached at takurth@msn.com.