Phragmites-related Ordinances

Many states also have noxious weed laws, although only Minnesota lists invasive Phragmites as a noxious weed. Thus, municipalities in Wisconsin have the benefit of employing state law to enforce their local noxious weed rules, and there are some good examples of what kind of language to use in this type of local ordinance (e.g., this ordinance and others in Door County). Wisconsin also regulates Phragmites under the state’s NR 40 rule, where, depending on the county, it is either prohibited or restricted.

Landscaping ordinances are also common and dictate what kind of plants should or should not be planted in new developments, public lands, wetland remediation projects, stormwater retention ponds, and other water management features. Phragmites is often listed as a plant that should not be planted in new developments, or that should not exceed a certain percentage of established plants in stormwater management projects. While helpful for preventing the planting of Phragmites, these rules typically exclude properties that have already been developed, and they do not have as much enforcement power as a noxious weed/invasive species management ordinance.

The basics

• Name of the ordinance (e.g., “An ordinance prohibiting the sale and planting of certain invasive plant species in Reed County, Phragland”)
• The regulating authority, which could be the municipality (e.g., “The Reed County Commissioners”) and or an existing law
• Purpose of ordinance / background information. This could include a lengthier summary of why the ordinance is needed.
• Effective date: The date the ordinance becomes effective. This could be communicated not as an actual date (e.g., “This Ordinance shall become effective the day following its publication in a newspaper of general circulation within the Township.” Reference.)

Definitions

• All relevant keywords should be defined, which may include:
• Noxious weed: Define what a noxious weed is, what kinds of plants are considered noxious weeds and why, and include a list of species with both common names and scientific names. Instead of listing each species specifically, you could reference a prohibited/restricted species list already in existence (e.g., one published by your state/province/county/or local invasive species management organization). This way, if any changes occur to that list, it is automatically included in the ordinance without having to change the language in the ordinance.
• Phragmites: Many ordinances simply list “Phragmites” as the plant to be managed; however, if there are significant populations of native Phragmites in your municipality, you may wish to specify that the invasive form of common reed, Phragmites australis subspecies australis, is the type of Phragmites that should be managed.
• Destroy: Determine what it means to destroy a plant (e.g., “complete killing of the weed or weed plant above the surface of the ground by the use of chemicals, cutting, tillage, [etc.] at a time and in a manner as will effectually prevent the weed plant from maturing to the bloom or flower stage.”)
• Invasive species: Example: “Invasive species are non-native plants, animals, or microbes that pose serious threats to human health and well-being, the environment, or our economy.”
• The types of plant parts that are targeted by or excluded in the ordinance (e.g., living plants already planted, plants for sale, seeds, etc.).
• Infestation: Determine what qualifies as an infestation of an invasive plant/Phragmites/noxious weed (e.g., a single plant, plants with seed heads, a certain area covered by plants, a percent coverage of plants, etc.).
• The type of person(s), business, or other entity targeted by the ordinance. For example, an “occupant” of the land vs. the “owner” of the land.
• The types of land where the ordinance will or will not apply (e.g., what constitutes a “vacant lot”).

The types of land where the ordinance will or will not apply

• This section will vary greatly by municipality and will depend on what jurisdiction that municipality has over different types of land (e.g., new vs. existing developments, areas with different zoning laws, public vs. private land, etc.), the capacity of enforcement officers, and the preferences of the officials and citizens. For example, many ordinances exclude ‘natural areas’ from noxious weed rules, which could include “naturally wooded areas, dune and dunegrass areas, or regulated wetlands or meadows” or “areas designated as undeveloped open space or meadows” (Reference). Similarly, land used for agriculture is usually excluded due to its sheer size and the differences in how that resource is managed. As for citizen preference, some municipalities do not regulate plants in flower or vegetable gardens on private properties.
• There may also be certain sections of land where the ordinance will apply / not apply. For example, some ordinances designate distances from the road or lot lines (Reference).

Dates the ordinance will apply

Some municipalities designate specific times of year when an ordinance is in effect, particularly for noxious weed ordinances (e.g., from May to October). This may be more important to include if the noxious weed ordinance also includes height restrictions for grass and other plants (see section below).

Height restrictions

Many noxious weed laws also incorporate plant height restrictions, or the duty to cut grass. If there is a duty to cut grass and weeds to meet height restrictions, then there should also be a date range during which these rules apply (see section above).

Unlawful acts / Conditions for remediation

• This section should be used to describe any acts that will incur investigations and/or penalties (e.g., allowing weeds or invasive species to proliferate, creating a nuisance due to unsightliness / unhealthy or unsafe condition / traffic hazards / fire hazards, allowing grass or weeds over a certain height, depositing yard waste into the street/gutter/etc., selling invasive plants).
• This section could also include additional offenses for people who perform related violations, including those who hinder or attempt to hinder someone performing their duties under the ordinance, who knowingly provide false information related to the ordinance, or who gain economically from violating the ordinance.
• If your ordinance does not result in punitive measures for violators (e.g., it is a Phragmites control ordinance such as this one), what are the conditions required for remediation? Will the landowner/occupant be responsible for remediation, or will the municipality? Who pays for remediation? Is a permit required to perform some kinds of management? Whose responsibility is it to obtain the permit? Who will manage reporting for a permit? Is there a specific timeframe the remediation must occur within?

Public notice / publishing

• Some municipalities have a requirement to post public notices yearly or on another schedule regarding the responsibilities of the citizenry in following the ordinance. This section may include what constitutes a public notice (e.g., a newspaper listing, a newsletter, a post on a public website, etc.) and when/how many times it needs to be posted.
• Some municipalities also have a requirement to publish a new ordinance within a certain period of time since its passing (e.g., 30 days). Where will it be published and what is the time frame required for publishing?

Enforcement

This section will vary depending on the type of ordinance, and whether it will be a punitive ordinance (e.g., noxious weed ordinance) or not (e.g., one where the municipality identifies an infestation and pays to have it removed). In this section, be sure to reference any related laws that provide authority for enforcement.

• Enforcement officers / inspectors
  • Define who has the right to enforce the ordinance and/or who has the right to inspect properties. Who are the enforcement officers? Are they from the police department? Parks department? Are they volunteers? Who do they report to?
  • Define how and when enforcement officers / inspectors are designated, if they are expected to work on a short-term basis.
  • Define the role of the enforcement officers / inspectors.
• Right of entry
  • Determine what rights of entry enforcement officers/inspectors have. Are they allowed to enter the land for the purpose of inspection or removal of offending plants, or will they need permission from the owner/occupant before any actions are taken? How will permission be obtained? Does permission need to be written? Are there any circumstances that would allow them to enter a property without permission (e.g., see “Emergency Actions” below)? If so, is any kind of authority required (e.g., an administrative search warrant)?
• Emergency Actions
  • Are there any situations in which officials will be allowed to take some kind of emergency action? What are the emergency actions and what situations would prompt emergency action? Emergency actions could include mandating removal of a species or removing invasive plants without a landowner’s permission if it causes a hazardous condition such as an immediate threat to human health or property.
  • Define any hazardous conditions that would necessitate emergency action. Examples include ecological impacts, disruption of stormwater management, blocking road or pedestrian sightlines, or creating hazardous fire conditions (Reference).
• Violation notices
  • Determine how and when property owners/occupants are notified about any violations. Notices may be provided by mail, by posting on the property, or other means. There should be a time limit on how long the owner/occupant has to remedy the violation (e.g., 10 days). You may wish to lay out all of the necessary components of the violation notice.
• Right to appeal / public hearings
  • Will there be an appeal process? What is the appeal process? Will there be hearings? Are they public hearings? Who has the right to appeal and why? Who is the hearing authority and how are they appointed? Can the order given to the landowner/occupant be modified upon appeal? How will the hearings be communicated to the public or to violators? Is there a time frame under which the communications about hearings must be distributed?
• Remediating a violation
  • If the violator has been asked to remediate a violation, are there any special conditions for doing so? That is, do they require a permit to perform some kinds of management? Whose responsibility is it to obtain the permit? Who will manage reporting for a permit?
  • Is there a specific timeframe the remediation must occur within?
• Penalties
  • Determine the penalties for disobeying the ordinance. Do the penalties vary by the frequency of violations (e.g., first violation vs. second, third, etc.)? Do violations continue to accrue by day not addressed (e.g., “A separate violation shall be deemed committed upon each day during which a violation occurs or continues.”)? Do the penalties vary by the severity of the violation?
  • If the municipality takes action when a landowner fails to (e.g., a township cuts down Phragmites when a landowner will not), how will the penalty to the landowner/occupant be assessed? Will they be billed? Will the municipality pay for the management itself?
• Failure to pay penalties or remediate a violation
  • What will the repercussions be of failing to pay any fines/penalties? These could include adding the charges to the owner/occupant’s tax bill, a civil charge/infraction, or a damages action being filed against the violator.

Exemptions

List any exemptions to the ordinance not already defined. Consider whether the ordinance will conflict with any overarching laws, and if so, state that the ordinance will not affect those higher-level rules.

Severability/Validity clauses

These types of clauses ensure that if any part of the ordinance is found to be unenforceable or invalid then the rest of the ordinance remains in effect or allow for the reformation of invalid provisions to make it enforceable, valid, or legal. They prevent the entire ordinance from being nullified due to one problematic section. These clauses will likely vary and be standardized by municipality.