C A L I F O R N I A
M E M O R A N D U M
DATE: October 17, 2023
TO: Mayor and City Council Members
FROM: Paul Buddenhagen, City Manager
SUBJECT: Study Session: Protecting Pollinators
RECOMMENDATION
This item offers the City Council the opportunity to discuss and provide direction to staff on options for protecting pollinators.
BACKGROUND
At the June 20, 2023 City Council meeting, Mayor Bauters requested and received majority support to add a future study session agenda item considering potential ordinances to protect pollinators and the food web. The future agenda item request included four topics to study:
1. Ban Neonicotinoids
2. Ban Rodenticides
3. Amend the municipal code nuisance ordinance related to lawn maintenance for placement of wildflowers in-lieu of a lawn; and
4. Create a voluntary wildflower program
DISCUSSION
Neonicotinoids
Neonicotinoids are a class of synthetic, neurotoxic insecticides that are used on agricultural crops, lawns, gardens, golf courses, and in flea and tick pet treatments.
Neonicotinoids, which are banned in the European Union, are the most popular insecticides in the United States. Hundreds of studies have shown they play a major role in population-level declines of bees, birds, butterflies and freshwater invertebrates.
In 2022, the Environmental Protection Agency released final biological evaluations confirming that three widely used neonicotinoid insecticides likely harm roughly threefourths of all endangered plants and animals, including all 39 species of amphibians protected under the Endangered Species Act. Neonicotinoids are used by Safe Harbors, on leased city property in the marina, but not used by City of Emeryville staff or contractors.
In 1996, the California State Legislature enacted AB 124 which clarified but did not significantly alter the California Department of Pesticide Regulation’s (DPR) preemption authority. This legislation requires the DPR to notify any local agency that proposes an Study Session: Protecting Pollinators
City Council Meeting | October 17, 2023
ordinance governing the sale, use or handling of pesticides whenever the DPR determines that state law preempts the ordinance. In addition, the DPR is required to file a court action, if necessary, to invalidate the ordinance and prohibit its enforcement.
However, local entities may still enact ordinances that regulate or restrict pesticide use in their own operations. For example, a city council may enact an ordinance that restricts or bans pesticide use in municipal buildings and in public parks.
Staff recommendation: There is a significant legal risk that a court would invalidate any ordinance enacted by the City of Emeryville banning or regulating the sale, transportation or use of neonicotinoids because such regulation would likely be preempted by state law. The City could potentially adopt such regulations if they applied only to City-owned, managed or leased property, or to contracts with the City of Emeryville. However, neonicotinoids are not used on any City of Emeryville owned or leased property so there is not an urgent need to adopt an ordinance prohibiting their use. Staff could develop information on the harms of neonicotinoids and a list of safer alternatives and send to large property owners in Emeryville with encouragement to stop using neonicotinoids if they are in use.
Rodenticides
In 2021, AB 1788 (“The California Ecosystems Protection Act”) went into effect which prohibits the use of second-generation anticoagulant rodenticides. AB 1788 contains some exceptions for wineries, breweries, warehouses, factories, agricultural sites, medical facilities, and drug and medical equipment manufacturing facilities. Like neonicotinoids, it appears that state law has preempted the ability of Emeryville to ban or regulate rodenticides by enacting restrictions on their sale. Moreover, there is a current bill (AB 1322), awaiting a decision by the Governor (at the time this report was written). If signed, this bill would expand the existing regulations on second-generation anticoagulant rodenticides, indicating further trending towards making pesticide regulation a state rather than local issue.
Neither City staff nor City-contractors regularly use rodenticides. No rodenticide use occurs at any buildings/facilities. However, due to the injury risk for people stepping into burrow holes in parks and open spaces and the difficulty of controlling rodents in those spaces, the City’s landscape contractor occasionally uses lawful rodenticide to reduce the gopher population. This use can result in “secondary poisoning” if other animals eat poisoned rodents. Whether and to what extent secondary poisoning occurs depends on various factors such as the accessibility of the poisoned rodent, the inherent toxicity of the rodenticide, the sensitivity of the animal ingesting the poisoned carcass, and the amount of the toxicant and the time sequence of the bait being ingested. As currently practiced by City Contractors, the rodenticide is inserted underground with a rod, and consumed in place, with the rodent often remaining underground after passing. Of course this is not always the case, and we should assume that some level of secondary poisoning is happening, though it is difficult to assess to what extent.
Study Session: Protecting Pollinators
City Council Meeting | October 17, 2023
The main alternative to rodenticides is setting underground bait box traps and then disposing of rodents (generally gophers) once caught. This method would be less effective and more labor intensive than using rodenticide. In addition, once the gophers are trapped, they can be audible, and it can take several hours before they can be retrieved. The traps are not difficult to notice, and could be easily accessed by the public, which can create a safety risk, particularly for young children. The City’s current contractor will not employ this method for this reason. If the City cannot use lawful rodenticide to address gopher issues, the City would need to find an alternative landscaping contractor willing to utilize trapping or another method(s) of control.
Staff recommendation: Continue existing practices.
Amend the EMC Nuisance Provisions to Allow Wildflowers in Lieu of Lawns and Create a Wildflower Program
There does not appear to be any state law preemption issues associated with enacting a wildflower-related ordinance or a mandate to reduce or ban the planting of grass which would reduce water usage and could potentially promote wildflowers as a grass alternative. Although staff could not find any wildflower-specific local ordinances in California, certain agencies have banned the planting of grass for new construction projects (Paso Robles, SLO County) to promote water conservation.
Staff Recommendation: To address the City Council’s request to promote and protect the pollinator population, staff could return with a draft ordinance designed to incentivize the planting and maintenance of wildflower seeds at no or very low cost to residents.
The program could be voluntary and could be managed and advertised by a City department (such as Community Services) or potentially another entity. The Emeryville Municipal Code property maintenance provisions set forth a variety of property conditions that are considered a nuisance (see section 6-11.01(a)-(n)), but staff anticipates that any wildflower incentive ordinance would not involve changes to these provisions and could instead include its own recommendations for maintenance that would be consistent with the rest of the Municipal Code. The incentive ordinance would govern the City’s donation of seeds and potentially other assistance that the City may provide to assist property owners with wildflower planting.
Staff is supportive of a wildflower incentive ordinance and seeks direction from the City Council on whether to include a ban on new grass installations as part of the Council’s effort to promote pollinators. The purpose of a grass ban is generally related to water conservation; however, it is possible that banning grass in new construction would encourage homeowners and developers to install other landscaping that could better support pollinators. Staff notes that grass bans could also encourage installation of artificial turf, which does conserve water but also generally requires factory production (i.e. fossil fuels), is not biodegradable, and can result in the reduction of wildlife habitats and in landscape maintenance job opportunities. Staff thus requests additional direction from the City Council on (1) whether a grass ban is desired in addition to the wildflower incentive program, and (2) the types of new construction (i.e. uses) that the Council Study Session: Protecting Pollinators
City Council Meeting | October 17, 2023
envisions would be required to comply with the ban. If the Council desires such an ordinance, staff envisions this ordinance would not be tied to the wildflower incentive ordinance.
Fiscal Impact
The fiscal impact of the wildflower item will depend mostly on the scope of the envisioned program. Approximately $900 would purchase 25 pounds of wildflower seeds which covers 25,000 – 50,000 square feet. Some staff time would need to be allocated to manage the program if it wasn’t taken on by another entity. The fiscal impact of any ban on grass installations will depend on its scope, and staff can provide updated information on fiscal implications should the Council desire further study of such an ordinance.
STAFF COMMUNICATION WITH THE PUBLIC
None
CONFLICT OF INTEREST
Not applicable.
CONCLUSION
Staff requests the City Council discuss and provide direction regarding the pollinator protection work.
PREPARED BY: Paul Buddenhagen, City Manager
APPROVED AND FORWARDED TO THE
CITY COUNCIL OF THE CITY OF EMERYVILLE:
Paul Buddenhagen, City Manager