HomeMy WebLinkAboutArticle 68 Wrk Grp Minutes - 10 19 2010_201402041900218194
ARTICLE 68 WORK GROUP
MEETING HELD TUESDAY, OCTOBER 19TH, 2010
AT 10:30 AM, CONFERENCE ROOM, 2 FAIRGROUNDS ROAD
Final Meeting Minutes
Members Present: Peter Boyce, Cormac Collier, Caroline Ellis, Dave Fronzuto, Bam LaFarge, Mark Lucas,
Wendy McCrae, Mike Misurelli, Richard Ray, Lee Saperstein, Ernest Steinauer, and Lucinda Young
Members Absent: Seth Rutherford
Guests: Whitey Willauer
Others: Jim Sutherland, Administrative Assistant
1. Call to Order
Chair Young called the meeting to order at 10:30 am, and stated that the minutes of the meeting were
being recorded by the Administrative Assistant.
2. Review and Approval of Preliminary Agenda
Chair Young asked if there were any comments or questions concerning the meeting agenda which had
been distributed to Work Group (WG) members via e‐mail in advance of the meeting. There were no
comments or questions and said meeting agenda was approved by acclamation.
3. Review and Approval of Minutes of the Meeting of October 5, 2010
The draft meeting minutes from October 5th, 2010, had been distributed prior to today’s meeting via e‐
mail. Chair Young asked if there were any comments or changes regarding said minutes. Hearing none,
the minutes were approved as distributed by acclamation.
Mr. Steinauer entered the Conference Room at 10:33am.
4. Chair’s Comments and Announcements; Comments from Members of the Work Group
Chair Young mentioned that she, Vice Chair Boyce, and Mr. Saperstein previously had discussed the
procedure of moving forward at today’s meeting. The Home Rule Petition (HRP) and Board of Health
(BOH) regulations have been edited. The HRP has been edited by Counselor Hucksam and the BOH
regulations edited by Mr. Ray.
Ms. McCrae entered the Conference Room at 10:34am
Chair Young then proceeded to discuss the overall remaining time‐line of the WG and tasks. She hopes
that today’s meeting will accomplish a section‐by‐section review of the draft HRP. Chair Young made it
clear that there will not be any vote taken today. She wants to give WG members time to review the
material thoroughly. November 2nd is the next scheduled meeting. She anticipates that any vote on
both documents will occur after changes are made and reviews occur, possibly at that meeting.
2
The next regularly scheduled meeting beyond November 2nd would be November 16th. Chair Young
suggested that the WG consider adding an extra meeting on November 9th to accomplish the tasks at
hand and then schedule an additional meeting in December after all material is reviewed. Chair Young
asked how WG members felt about this schedule. There was a consensus of WG members in favor of
scheduling the additional November 9th meeting. A December meeting date will be decided at the
November 2nd meeting.
There was a general feeling that the BMPs will be ready for review by November 9th. Vice Chair Boyce
stated that the WG should have something reasonable to send to the Board of Selectmen by this time.
Mr. Steinauer stated that he has concerns if the BMPs are not statutory, i.e., if the BMPs are just
presented as recommendations. In current form, he views the BMPs as a voluntary set of guidelines.
Mr. Saperstein responded by stating that the HRP should have enough rigor in the standards of
performance that if someone never opened the BMP, we (the WG) still would achieve an objective. The
way to discuss all of this material is to get it on the table before the Work Group, talk it through, and
work it out. The WG has intentionally linked professional applicators of fertilizer to licensure and
licensure states that the BMP will be followed. However, there are a host of people out there who don’t
have to be licensed; for them there will be minimum standards contained in the document.
Mr. Ray entered the Conference Room at 10:42am
5. Brief Review of Draft Outline of Recommendations for Consideration at Next Meeting
This section of the agenda was skipped and not discussed during the meeting.
6. Review, Discussion and Amendments to Draft Home Rule Petition and Board of Health Regulations
Motion: Mr. Saperstein moved adoption of the draft legislation, as last amended by Counselor
Hucksam, as our recommendation to the Board of Selectmen for a Home Rule Petition on fertilizer
application on Nantucket. The motion was seconded by Ms. McCrae.
Mr. Steinauer was not in agreement with this procedure of review since he felt that any subsequent
changes, even if minor, would require the full approval of the WG if the document was approved
formally. He recommended leaving the document as a draft and proceeding with the review. He
recommended that the group only vote once the document has been reviewed, revised and changed
according to the procedure involved. Mr. Steinauer suggested not adopting the motion. After some
discussion, Mr. Saperstein withdrew his motion and Ms. McCrae withdrew her second of the motion.
Mr. Ray exited the Conference Room at 10:49am and re‐entered the Conference Room at 10:50am.
The consensus of the WG members was that the draft HRP will be marked up section‐by‐section and
changed by consent.
Editor’s (JWS) Note: The following minutes describe the discussion and proposed changes as the WG
proceeded through the document. In most cases, the revised wording is presented in the appropriate
section where the discussion occurred. A complete copy of the Work Group changes to the HRP that
3
occurred at this meeting is provided as an attachment (Attachment 1) to these meeting minutes so
that changes may be reviewed and considered in the context of their presentation.
‐‐‐‐‐‐‐‐‐‐
TITLE
Vice Chair Boyce proposed a change in the title to the following:
AN ACT REGULATING THE CONTENT AND APPLICATION OF FERTILIZER USED IN THE TOWN OF
NANTUCKET TO MINIMIZE NUTRIENT CONTAMINATION IN NANTUCKET’S WATERS
Chair Young asked if there was agreement within the WG regarding this change.
Mr. Fronzuto entered the Conference Room at 10:53am
Mr. Steinauer raised a POINT OF ORDER and stated that unless there is disagreement, the WG will adopt
this change by unanimous consent. If someone speaks up, there is disagreement, followed by discussion
and vote. If no‐one speaks up, then the change is accepted. Chair Young agreed with the procedure.
Mr. Fronzuto questioned the use of the work ‘contamination’. Mr. Saperstein suggested that it was a
term of use by the EPA and in fertilizer regulations in other jurisdictions.
The change to the title was adopted by unanimous consent.
‐‐‐‐‐‐‐‐‐‐
Mr. Saperstein then removed the introductory verbiage related to the HRP since it is irrelevant to this
particular situation. Thus, the beginning of the document appears as follows:
Home Rule Petition: AN ACT REGULATING THE CONTENT AND APPLICATION OF FERTILIZER USED IN
THE TOWN OF NANTUCKET TO MINIMIZE NUTRIENT CONTAMINATION IN NANTUCKET’S WATERS
The change was adopted by unanimous consent.
‐‐‐‐‐‐‐‐‐‐
SECTION 1. FINDINGS
1.4. Applying slow‐release nitrogen to plants and plantings maintains healthy plant growth
while decreasing contamination to groundwater.
Mr. Steinauer felt that this finding was inadequate as stated and that some sort or qualifier was required
to make the statement meaningful regarding slow‐release nitrogen. Mr. Lucas suggested adding
‘appropriate types and amounts’. The wording was added so that the revised finding reads as follows:
1.4. Applying appropriate amounts and types of slow‐release nitrogen to plants and plantings
maintains healthy plant growth while decreasing contamination to groundwater.
The change was adopted by unanimous consent.
‐‐‐‐‐‐‐‐‐‐
4
1.6. Plants do not effectively utilize nitrogen and phosphorus during periods when the soil is
frozen or the plants are dormant, thus allowing nutrients to run off into Nantucket’s Harbors
and ponds in increased amounts.
1.7. Heavy precipitation, snowmelt, and excessive irrigation greatly increase the amount of
nitrogen and phosphorus that run off into adjacent water‐bodies.
Mr. Steinauer was concerned that leaching was not mentioned in either finding since that was the basis
for the WG being formed and addressing the water quality problems. Sections 1.6 and 1.7 were
changed as follows:
1.6. Plants do not effectively utilize nitrogen and phosphorus during periods when the soil is
frozen or the plants are dormant, thus allowing nutrients to run off or leach into Nantucket’s
Harbors and ponds in increased amounts.
1.7. Heavy precipitation, snowmelt, and excessive irrigation greatly increase the amount of
nitrogen and phosphorus that run off or leach into adjacent water‐bodies.
These changes were adopted by unanimous consent
‐‐‐‐‐‐‐‐‐‐
Mr. Steinauer then proposed some wording in the Findings section about the Nantucket coarse sandy
soils and why regulations are important on the Island. Mr. Steinauer was asked to prepare something
on paper during the meeting and Mr. Saperstein will incorporate it into the document at the meeting.
‐‐‐‐‐‐‐‐‐‐
SECTION 2. PURPOSE
2.1. Voluntary Best Management Practices (BMP) on the application of fertilizer have not been
sufficient to prevent degradation of Nantucket’s waters. Consequently, it is necessary to
impose mandatory controls in the Town of Nantucket on the use of fertilizer that contains
phosphorus and high percentages of fast‐acting nitrogen so as to improve the water quality of
the Town.
Mr. Lucas felt that this statement should be struck from the document. It is not a factual statement.
Mr. Misurelli agreed. Vice Chair Boyce believed that this statement could be a red flag. Mr. Fronzuto
suggested deleting the first sentence of the statement. After some discussion, Section 2.1 was changed
to read as follows:
2.1. It is necessary to impose mandatory controls in the Town of Nantucket on the use of
fertilizer that contains phosphorus and nitrogen so as to improve the water quality of the
Town.
These changes were adopted by unanimous consent
‐‐‐‐‐‐‐‐‐‐
5
2.2. It is imperative that restrictions on the amount of nitrogen and phosphorus discharged
into Nantucket’s waters be imposed so as to protect the integrity of Nantucket’s waters for
present and future generations.
Mr. Steinauer felt that this statement is very similar to the previous statement and says almost the same
thing. There was some discussion among WG members. The wording was changed as follows:
2.2. Restrictions on the amount of nitrogen and phosphorus discharged into Nantucket’s
waters will protect the integrity of Nantucket’s waters for present and future generations.
This change was adopted by unanimous consent.
Mr. Willauer entered the Conference Room at 11:16am.
‐‐‐‐‐‐‐‐‐‐
2.4. The Act should help Nantucket to achieve compliance with the Total Maximum Daily
Loads (TMDL) prescribed by the Commonwealth of Massachusetts for nitrogen and
phosphorus in its waters.
There was some discussion among WG members about changing the wording of this statement. The
wording was changed as follows:
2.4. The purpose of this Act is to help Nantucket achieve compliance with the Total Maximum
Daily Loads (TMDL) prescribed by the Commonwealth of Massachusetts for nitrogen and
phosphorus in its waters.
This change was adopted by unanimous consent
‐‐‐‐‐‐‐‐‐‐
SECTION 3. AUTHORITY
3.1. Article 68, as amended and approved by the Town of Nantucket Annual Town Meeting on
April 6, 2010, adjourned session, authorized the convening of a committee to devise legislation
or other such vehicle to reduce the amount of nitrogen and phosphorus going into its waters.
3.2. Article _____, approved by the Town of Nantucket Annual Town Meeting on April ___,
2011, approved the introduction of this legislation in the General Court.
There was brief discussion about changing the wording of these two statements since they are not
relevant to the current situation. Changes were made to reflect the following:
3.1. Article 68, as amended and approved by the Town of Nantucket Annual Town Meeting on
April 6, 2010, adjourned session, approved the introduction of this legislation in the General
Court.
These changes were adopted by unanimous consent.
‐‐‐‐‐‐‐‐‐‐
6
SECTION 1. FINDINGS
Mr. Steinauer supplied a written version for a statement concerning Nantucket soils, which was
discussed earlier, that was inserted as Finding 1.3 as follows:
1.3. Nantucket has significant amounts of coarse, sandy soils that are subject to rapid water
infiltration, percolation and leaching of nutrients.
This change was adopted by unanimous consent.
Note: this change necessitated a change in the numbering of all subsequent statements of finding
which is reflected in the draft HRP attached to these meeting minutes.
‐‐‐‐‐‐‐‐‐‐
SECTION 4: DEFINITIONS
“Agriculture” means farming in all of its branches and the cultivation and tillage of the soil,
the production, cultivation, growing and harvesting of any agricultural, floricultural or
horticultural commodities. For the purposes of these regulations agriculture means the
raising of crops for commercial sale, where the threshold of commercial is two thousand five
hundred dollars ($2500.00) or more per year measured as an average over a five‐year period.
See also “horticulture.”
Mr. Saperstein stated that Mr. Hucksam has given us his interpretation of the definition of “agriculture”.
Mr. Steinauer asked about the situation where someone had not been in business for 5 years. Mr.
Saperstein responded that the clock starts when they reach the $2,500 threshold. Mr. Lucas had some
questions about particular situations involving a horticultural business which also maintains plantings on
other, outside properties and whether, as a company, they are exempt from this condition. It does
exclude flower grower, but for off‐property situations, they should be regulated since they also are
probably an applicator. Mr. Saperstein suggested looking at the definition of “applicator” to help refine
this consideration. There were no changes made to the definition of “agriculture”.
Mr. Fronzuto exited the Conference Room at 11:24am and re‐entered at 11:25am.
‐‐‐‐‐‐‐‐‐‐
“Amendment” refers to the application of substances that are beneficial to soils and plantings;
amendments include but are not limited to fertilizers and may include other soil conditioners
such as lime, compost, and other organic materials.
Mr. Steinauer questioned the use of the term “beneficial’ in the above definition. After some
discussion, the wording of the definition was revised as follows:
“Amendment” refers to the application of substances to soils and plantings; amendments
include but are not limited to fertilizers and may include other soil conditioners such as lime,
compost, and other organic materials.
This change was adopted by unanimous consent.
‐‐‐‐‐‐‐‐‐‐
7
“Applicator” means any person who applies fertilizer to plants.
Mr. Steinauer suggested adding “and soils” to the end of the above definition since fertilizer is applied to
both plants and soils. The definition was revised as follows:
“Applicator” means any person who applies fertilizer to plants and soils.
This change was adopted by unanimous consent.
‐‐‐‐‐‐‐‐‐‐
“Best Management Practice,” BMP, means a voluntary sequence of activities designed to limit a
nonpoint pollution source. For the purposes of this Act, BMP means the current edition of “Best
Management Practices for Fertilizer Use on Lawn and Landscape Plantings on Nantucket, MA.”
Mr. Steinauer suggested removing the word “voluntary” from the above definition, which was the same
comment as Mr. Steinauer had made earlier in the meeting. The definition was changed as follows:
“Best Management Practice,” BMP, means a sequence of activities designed to limit a nonpoint
pollution source. For the purposes of this Act, BMP means the current edition of “Best
Management Practices for Fertilizer Use on Lawn and Landscape Plantings on Nantucket, MA.”
This change was adopted by unanimous consent
Mr. Ray exited the Conference Room at 11:35am
‐‐‐‐‐‐‐‐‐‐
Mr. Lucas raised a question about whether “applicator” and “application” are synonymous terms?
There was a consensus that “yes” these two terms are synonymous and any problems that might arise
from this situation can be corrected under the “Penalties” section.
‐‐‐‐‐‐‐‐‐‐
“Conservation Farm Plan” means a formal plan filed with ______________ by farms and farm
units found to be degrading the quality of water beyond the promulgated Water Quality
Standards.
Mr. Collier suggested removing this definition from the document since this particular situation was not
relevant to Nantucket. The definition was removed from the document.
This change was adopted by unanimous consent
Mr. Willauer exited the Conference Room at 11:44am and re‐entered at 11:50am
‐‐‐‐‐‐‐‐‐‐
“Fertilizer” means a substance that enriches the soil with elements essential for turf growth,
such as nitrogen, phosphorus or other substances; fertilizer does not include those nutrients
that are normally excluded from fertilizer such as contained in dolomite, limestone, or lime.
8
Mr. Lucas suggested substituting the word “plant” for ‘turf’ in the above definition. It also was
suggested that the term “fertilizer” includes foliar fertilizers as defined in the HRP below. The definition
was changed as follows:
“Fertilizer” means a substance that enriches the soil with elements essential for plant growth,
such as nitrogen, phosphorus or other substances; fertilizer does not include those nutrients
that are normally excluded from fertilizer such as contained in dolomite, limestone, or lime.
The term fertilizer includes foliar fertilizers as defined below.
These changes were adopted by unanimous consent
‐‐‐‐‐‐‐‐‐‐
“Fertilize, fertilizing or fertilization” means the act of applying fertilizer to plants.
Mr. Steinauer recommended adding “or soils” to the end of the definition since fertilizer is added to
plants and soils. The definition was changed as follows;
“Fertilize, fertilizing or fertilization” means the act of applying fertilizer to plants or soils.
This change was adopted by unanimous consent.
‐‐‐‐‐‐‐‐‐‐
“Landscape professional” means a person who, in exchange for money, goods, services or
other consideration, applies fertilizer to plants.
Mr. Steinauer suggested adding “or soils” to the end of the above definition. The definition was
changed as follows:
“Landscape professional” means a person who, in exchange for money, goods, services or
other consideration, applies fertilizer to plants or soils.
This change was adopted by unanimous consent
‐‐‐‐‐‐‐‐‐‐
“Landscaping” means establishment by sod or seeding, renovation, maintenance, fertilization
or pest management of turf and other plantings.
Mr. Collier suggested deleting the phrase “or pest management” from the definitions since the WG is
trying to avoid possible conflicts with State authority. The definition was changed as follows:
“Landscaping” means establishment by sod or seeding, renovation, maintenance or
fertilization of turf and other plantings.
This change was adopted by unanimous consent
‐‐‐‐‐‐‐‐‐‐
9
Mr. Saperstein then proceeded to type in the full definition of “nutrient”. The full definition, as typed in,
is as follows:
“Nutrient” means any of the following 16 elements needed for growth of a plant; the three (3)
non‐mineral elements: carbon, hydrogen, and oxygen; the six (6) macronutrients: nitrogen,
phosphorus, potassium, calcium, magnesium, and sulphur; and the seven (7) micronutrients:
boron, copper, iron, chlorine, manganese, molybdenum, and zinc.
This change was adopted by unanimous consent
‐‐‐‐‐‐‐‐‐‐
“Plants” are biological species in the vegetable kingdom that, for the purposes of this Act, are
used domestically.
Mr. Steinauer commented about the use of the term “vegetable” and thought that “Plantae” was more
appropriate and scientific. The definition was changed as follows:
“Plants” are biological species in the Kingdom Plantae that, for the purposes of this Act, are
used domestically.
These changes were adopted by unanimous consent
‐‐‐‐‐‐‐‐‐‐
“Waters” or “Water‐bodies” include, but are not limited to, streams, including intermittent
streams, creeks, rivers, freshwater and tidal wetlands, ponds, lakes, marine waters, canals,
lagoons, and estuaries within the Town of Nantucket, including without limitation all waters
defined in Massachusetts General Laws Chapter 131, Section 40 and Town of Nantucket Code
Section 136.
Mr. Saperstein asked Mr. Steinauer if the definition, as presented, seemed sufficient. It had been taken
from Massachusetts General Law. It was decided to leave the definition as is and go back and check
further for possible refinement.
‐‐‐‐‐‐‐‐‐‐
Mr. Collier proposed that the WG stop for today and continue during the November 2nd meeting. There
was a general consensus regarding this decision.
Mr. Saperstein asked whether amendment changes should be received in advance of the November 2nd
meeting. WG members were encouraged to send draft HRP changes to Chair Young who will provide
these changes to Mr. Saperstein so the complete draft can be prepared prior to the November 2nd
meeting.
It also was proposed that the November 2nd meeting start at 10:00am. There was a consensus among
WG members that this was a good start time to accomplish the necessary work.
Mr. Collier proposed that the WG set a goal for the next meeting of getting through the remainder of
the HRP and also the BOH regulations.
10
10. Adjourn
Motion: A motion was made by Mr. Collier, seconded by Ms. McCrae, to adjourn the meeting. The
motion passed.
The meeting was adjourned at 12:00pm.
Next Meeting: Tuesday, November 2nd ‐ 10:00 am at 2 Fairgrounds Road. NOTE NEW TIME.
Respectfully submitted,
James W. Sutherland, Administrative Assistant
Lee W. Saperstein, Secretary
11
ATTACHMENT 1
(Home Rule Petition:
AN ACT REGULATING THE CONTENT AND APPLICATION OF FERTILIZER USED IN THE TOWN OF
NANTUCKET TO MINIMIZE NUTRIENT CONTAMINATION IN NANTUCKET’S WATERS
SECTION 1. FINDINGS
1.1. There is a sound scientific basis to conclude that nitrogen and phosphorus in fertilizers are
contaminants that negatively affect water‐bodies when present in excessive amounts,
contributing to undesirable algae and aquatic plant growth, known as “eutrophication”.
1.2. Excessive amounts of both nitrogen and phosphorus discharged into the waters of
Nantucket significantly decrease the habitat value of the freshwater and estuarine ecosystems
including without limitation for hard clams, bay scallops and other species and increase the risk
of deleterious impacts on public health and general welfare.
1.3. Nantucket has significant amounts of coarse, sandy soils that are subject to rapid water
infiltration, percolation and leaching of nutrients.
1.4. The Nantucket and Madaket Harbors, the surrounding coastal waters and Nantucket’s
ponds are essential components of the recreation, tourism and commercial fisheries industries
in the Town of Nantucket.
Formatted: Indent: Left: 36 pt
Deleted: ¶
Article ___¶
¶
Deleted: An Act Regulating the Content
and Application of Fertilizer in the Town
of Nantucket)¶
¶
To see if the Town will vote to request its
representatives in the General Court to introduce legislation seeking a special act
as set forth below and to authorize the
General Court, with the approval of the Board of Selectmen, to make constructive
changes in perfecting the language of this
proposed legislation in order to secure
passage, such legislation to read
substantially as follows:
Deleted: ¶
Deleted: 3
12
1.4. Applying appropriate amounts and types of slow‐release nitrogen to plants and plantings
maintains healthy plant growth while decreasing contamination to groundwater.
1.5. Applying phosphorus to plants only in situations in which a soil test indicates the need to do
so is a sound management practice and can decrease the nutrient load to Nantucket and
Madaket Harbors and freshwater ponds in the Town of Nantucket.
1.6. Plants do not effectively utilize nitrogen and phosphorus during periods when the soil is
frozen or the plants are dormant, thus allowing nutrients to run off or leach into Nantucket’s
Harbors and ponds in increased amounts.
1.7. Heavy precipitation, snowmelt, and excessive irrigation greatly increase the amount of
nitrogen and phosphorus that run off or leach into adjacent water‐bodies.
1.8. The Nantucket & Madaket Harbors Action Plan, approved by the Secretary of the
Massachusetts Executive Office of Energy and Environmental Affairs (EEA) on December 21,
2009, specifies the need to reduce nutrients (specifically nitrogen and phosphorus) flowing into
the Harbors.
13
1.9. EEA, in Report #97‐TMDL‐2 Control #249.0, January 28, 2009, “Nantucket Harbor
Embayment System, Total Maximum Daily Loads for Total Nitrogen,” has mandated Total
Maximum Daily Loads (TMDL) for Nantucket Harbor.
1.10. 301 CMR 21.98, “Policy Appendix,” specifies that the Massachusetts Coastal Zone
Management (MCZM) Program Plan will “ensure that nonpoint pollution controls promote the
attainment of state surface water quality standards in the coastal zone” (301 CMR 21.98(3):
Water Quality Policy # 2).
1.11. The Massachusetts “Nonpoint Pollution Source (NPS) Management Plan,” created by the
Department of Environmental Protection (DEP), Bureau of Resource Protection, states that a
DEP objective is to assist “communities in drafting river protection bylaws and ordinances.”
1.12. The Massachusetts Estuaries Project (MEP), whose reports are available from the DEP,
states, as part of the suggestions for a solution to the problem of nutrient management, that
“limiting the use of lawn fertilizers” may be necessary.
SECTION 2. PURPOSE
14
2.1. It is necessary to impose mandatory controls in the Town of Nantucket on the use of
fertilizer that contains phosphorus and nitrogen so as to improve the water quality of the Town.
2.2. Restrictions on the amount of nitrogen and phosphorus discharged into Nantucket’s waters
will protect the integrity of Nantucket’s waters for present and future generations.
2.3. This Act provides for a reduction of nitrogen and phosphorus going into Nantucket’s waters
by means of an organized system of education, licensure, and regulation of practice.
2.4. The purpose of this Act is to help Nantucket achieve compliance with the Total Maximum
Daily Loads (TMDL) prescribed by the Commonwealth of Massachusetts for nitrogen and
phosphorus in its waters.
SECTION 3. AUTHORITY
3.1. Article 68, as amended and approved by the Town of Nantucket Annual Town Meeting on
April 6, 2010, adjourned session, approved the introduction of this legislation in the General
Court.
Deleted: 2.1. Voluntary Best
Management Practices (BMP) on the
application of fertilizer have not been
sufficient to prevent degradation of
Nantucket’s waters. Consequently, i
Deleted: high percentages of fast‐
acting
Deleted: It is imperative that r
Deleted: be imposed so as to
Deleted: should
Deleted: to
Deleted: authorized the convening of a
committee to devise legislation or other
such vehicle to reduce the amount of
nitrogen and phosphorus going into its
waters.¶
3.2. Article _____, approved by the
Town of Nantucket Annual Town
Meeting on April ___, 2011,
15
SECTION 4. DEFINITIONS: For the purposes of this Act, the following words shall have the following
meanings unless the context clearly indicates a different meaning.
“Agriculture” means farming in all of its branches and the cultivation and tillage of the soil, the
production, cultivation, growing and harvesting of any agricultural, floricultural or horticultural
commodities. For the purposes of these regulations agriculture means the raising of crops for
commercial sale, where the threshold of commercial is two thousand five hundred dollars
($2500.00) or more per year measured as an average over a five‐year period. See also
“horticulture.”
“Amendment” refers to the application of substances to soils and plantings; amendments
include but are not limited to fertilizers and may include other soil conditioners such as lime,
compost, and other organic materials.
“Applicator” means any person who applies fertilizer to plants and soils.
“Best Management Practice,” BMP, means a sequence of activities designed to limit a nonpoint
pollution source. For the purposes of this Act, BMP means the current edition of “Best
Management Practices for Fertilizer Use on Lawn and Landscape Plantings on Nantucket, MA.”
Deleted: that are beneficial
Deleted: voluntary
16
“Combination Products,” sometimes known as “Weed and feed,” means any product that, in
combination with fertilizer, contains weed killer, defoliant, crabgrass preventer, or any other
chemical for restricting the growth of plants other than turf.
“Fast‐acting nitrogen” means any water‐soluble nitrogen that is immediately available to plants
upon application.
“Fertilize, fertilizing or fertilization” means the act of applying fertilizer to plants or soils.
“Fertilizer” means a substance that enriches the soil with elements essential for plant growth,
such as nitrogen, phosphorus or other substances; fertilizer does not include those nutrients
that are normally excluded from fertilizer such as contained in dolomite, limestone, or lime.
Fertilizer includes foliar fertilizers as defined below.
“Foliar Fertilizer” means any fertilizer product designed for uptake into a plant through its leaves
and which typically are sprayed directly onto a plant.
“Horticulture” is a general term meaning plant science and plant products. For the purposes of
this Act, horticulture means the raising of flowers fruits, vegetables, berries, nuts for commercial
Deleted: ¶
“Conservation Farm Plan” means a
formal plan filed with ______________
by farms and farm units found to be
degrading the quality of water beyond
the promulgated Water Quality
Standards. ¶
Deleted: turf
17
sale, where the threshold of commercial is two thousand five hundred dollars ($2500.00) or
more per year measured as an average over a five‐year period. See also “agriculture.”
“Impervious surface” means a surface that has been compacted or covered with a layer of
material so that it is highly resistant to infiltration by water.
“Landscape professional” means a person who, in exchange for money, goods, services or other
consideration, applies fertilizer to plants or soils.
“Landscaping” means establishment by sod or seeding, renovation, maintenance, or fertilization
of turf and other plantings.
“Nantucket” is the Town and County of Nantucket and all of its waters.
“Nantucket BMP” is the current edition of the “Best Management Practices for Fertilizer Use on
Lawn and Landscape Plantings on Nantucket, MA.”
“‘Nonpoint Pollution’ means contamination which includes but is not limited to sediments,
nutrients, pathogens, and pollutants that collect in waterbodies from stormwater runoff.” (301
CMR 26.03, “Definitions” in the “Coastal Pollutant Remediation Program”)
Deleted: or pest management
18
“Nonpoint Pollution Source (NPS)” means any activity releasing pollution and that is not deemed
point source pollution.
“Nutrient” means any of the following 16 elements needed for growth of a plant; the three (3)
non‐mineral elements: carbon, hydrogen, and oxygen; the six (6) macronutrients: nitrogen,
phosphorus, potassium, calcium, magnesium, and sulphur; and the seven (7) micronutrients:
boron, copper, iron, chloride, manganese, molybdenum, and zinc.
“Nutrient management” means systematic control of the application of nutrients.
“Plantings” means organized cultivation of plants for beneficial purposes.
“Plants” are biological species in the Kingdom Plantae that, for the purposes of this Act, are used
domestically.
“Slow‐release, controlled‐release, timed‐release, slowly available, or water‐insoluble nitrogen”
means nitrogen in a form that delays its availability for plant uptake and use after application
and is not rapidly available to turf and other plants.
Formatted: Font: Italic
Deleted: ________________________
__________________.
Deleted: vegetable
Deleted: k
19
“Soil” means the upper‐most layer of the earth’s surface, comprised of mineral and organic
matter, which can host biological communities.
“Soil test” means a technical analysis of soil conducted by an accredited soil‐testing laboratory.
“Turf” means grass‐covered soil held together by the roots of the grass, also known as “sod” or
“lawn.”
“Waters” or “Water‐bodies” include, but are not limited to, streams, including intermittent
streams, creeks, rivers, freshwater and tidal wetlands, ponds, lakes, marine waters, canals,
lagoons, and estuaries within the Town of Nantucket, including without limitation all waters
defined in Massachusetts General Laws Chapter 131, Section 40 and Town of Nantucket Code
Section 136.
SECTION 5. STANDARDS OF PERFORMANCE
5.1. Prohibited Conduct. Applicators shall not:
20
a. apply fertilizer immediately before or during heavy rainfall, such as but not limited to
thunderstorms, hurricanes or north eastern storms or when the soil is saturated due to
intense or extended rainfall;
b. apply fertilizer between November 15th and the following April 1st of any calendar
year;
c. apply, spill or deposit fertilizer on any impervious surface and fail to remove the
applied, spilled or deposited fertilizer immediately;
d. apply fertilizer closer than twenty five‐feet to water‐bodies;
e. deposit grass clippings, leaves, or any other vegetative debris into water‐bodies,
retention and detention areas, drainage ditches or storm water drains, or onto
impervious surfaces such as, but not limited to, roadways and sidewalks, except during
scheduled clean up programs.
5.2. Fertilizer Content and Application Requirements for Applicators
a. The following restrictions shall apply to the content of fertilizer to be applied to turf.
21
i. An applicator shall not apply any fertilizer to turf unless the fertilizer contains
a minimum of 70 percent slow‐release nitrogen as the nitrogen additive.
ii. An applicator shall not apply fertilizer that contains phosphorus, unless a soil
test indicates a phosphorus deficiency.
iii. Any fertilizer applied to soil with a demonstrated phosphorus deficiency shall
comply with the Nantucket BMP.
b. Fertilizer application shall comply with the Nantucket BMP. In addition, in no instance
shall a single application exceed 1.25 pounds per thousand square feet and the annual
rate shall not exceed 4.0 pounds per thousand square feet.
c. The fertilizer application requirements of Section 5.2.b. of this Act shall apply without
limitation to the application of pesticide, herbicide, and fertilizer mixtures, including but
not limited to, combination products.
d. Foliar Products shall be applied in compliance of the Nantucket BMP.
5.3. Exemptions. The following activities shall be exempt from Sections 5.1. and 5.2. of this Act:
22
a. Application of phosphorus when:
i. establishing vegetation for the first time, such as after land disturbance,
provided the application is in compliance with the Nantucket BMP;
ii. re‐establishing or repairing turf after substantial damage;
b. Use of reclaimed water for irrigation, provided it is not used within twenty‐feet of any
waterbody.
c. Application of fertilizer for agricultural and horticultural uses, including sod farms.
SECTION 6. EDUCATION, LICENSURE, ENFORCEMENT, AND PENALTIES.
6.1. Education
a. The Town of Nantucket Board of Health shall maintain a program of fertilizer
education that is based on its BMP.
23
b. The Town’s Board of Health shall administer a test passage of which shall
demonstrate an individual’s participation in fertilizer education.
c. Summaries of fertilizer application requirements will be made readily available to the
public by the Town.
6.2. Licensure
a. A license issued by the Town of Nantucket Board of Health is required of Landscape
Professionals when they fertilize lawns and plantings; such a license may be held but is
not required by home‐owners who apply fertilizer on their own property.
b. Persons who pass the test described in 6.1.b. may apply to the Board of Health for a
fertilizer license.
c. Fertilizer licenses shall be valid for a period of three years from the date of issuance;
renewal requires passage of the current test.
6.3.. Enforcement
24
Enforcement of this Act shall be by the Nantucket Board of Health or its agent.
6.4. Penalties
a. Application of fertilizer by an unlicensed person shall be punished by a fine of five
hundred dollars ($500.00).
b. Application of fertilizer in violation of this Act shall be punished by loss of license
and/or a fine of five hundred dollars ($500.00).
c. Subsequent offenses shall be punished by fines of five thousand dollars ($5000.00)
per offense.
d. As an alternative to initiating criminal proceedings, this Act may be enforced
pursuant to the noncriminal disposition procedure set forth in M.G.L. c.40 §21D and
Chapter 1, Article II of the Town’s Code, in which case the Board of Health or its agent
shall be the enforcing person and the penalty shall be $300.00 for each offense.
SECTION 7. SEVERABILITY CLAUSE
25
Should any section, part or provision of this Act be deemed invalid or unconstitutional, such decision
shall not affect the validity of the remaining terms of this Act as a whole or any part thereof, other than
the section, part or provision held invalid or unconstitutional.
SECTION 8. AMENDMENTS [LWS Proposal]
Amendments of this Act and of the supporting Nantucket BMP shall be based on science and proposed
formally only after they have been reviewed by a diverse committee of stakeholders similar in nature to
the Work Group that drafted them.
SECTION 8. AMENDMENTS [PB Proposal]
A. The Nantucket BMP is based on principles of soil science as specifically adapted to Nantucket
soils and climate. It was developed by a broad group of stakeholders representing diverse
interests, and has been reviewed and approved by UMASS soil and turf scientists and educators.
Amendment of the Nantucket BMP shall be based on scientific information and may be made
only by a similarly broad group. Such changes may go into effect only after scientific review by
knowledgeable soil scientists.
B. This Act is based on the Nantucket BMP and was developed by a broad group of stakeholders
representing diverse interests and has been reviewed and approved by UMASS soil and turf
26
scientists and educators. Amendment off this Act shall be based on scientific information and
may be made only by a similarly broad group. Such changes may go into effect only after
scientific review by knowledgeable soil scientists.
SECTION 9. Regulations
The Town of Nantucket Board of Health is hereby authorized to adopt regulations to effectuate the
purposes of this Act, including without limitation the adoption of the Nantucket BMP as a regulation;
However, the failure of the Board of Health to adopt regulations shall not act to suspend or invalidate
the effect of this Act.[Printed: 2010‐11‐04]
DWLIBDB\246943.1 7601/00
27