HomeMy WebLinkAboutHome Rule Petition Final Recommendation or BOS_201401221138387921A Proposal to the Board of Selectmen of the Town and County of Nantucket from the Article 68
Work Group for a Home Rule Petition to Control the Application of Fertilizer on Nantucket:
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, to 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 and wetlands are essential components of the recreation, tourism, and
commercial-fishing industries in the Town of Nantucket.
1.5. Applying appropriate amounts and types of slow-release nitrogen to plants and
plantings maintains healthy plant growth while decreasing contamination to groundwater.
1.6. 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, freshwater ponds, and wetlands in the Town of
Nantucket.
1.7. Plants do not effectively utilize nitrogen and phosphorus during periods when the
soil is frozen or the plants are dormant, thus allowing nutrients either to run off or to
leach into Nantucket’s Harbors and ponds in increased amounts.
1.8. Heavy precipitation, snowmelt, and excessive irrigation greatly increase the amount
of nitrogen and phosphorus that runs off or leach into adjacent water-bodies.
1.9. 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.
1.10. 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.
1.11. 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).
1.12. 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.”
1.13. 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
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.
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
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or horticultural commodities. For the purposes of this Act 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 and pursuant to Section 5.1, BMP
means the current edition of “Best Management Practices for Fertilizer Use on Lawn and
Landscape Plantings on Nantucket, MA.”
“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.
“Compost” is partially decomposed organic matter that is used as a soil amendment.
Compost is considered a fertilizer for the purposes of this Act.
“Compost tea” is a liquid infusion of compost that is used as a soil amendment or foliar
fertilizer. Compost tea is considered a fertilizer for the purposes of this Act.
“Continuing education hours” means elapsed or actual time spent in an educational,
professional-development activity.
“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 chemically part of
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,
herbs, nuts, and other similar products for commercial sale, where the threshold of
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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, seeding, or transplanting, renovation,
maintenance, or fertilization of turf and other plantings.
“Licensed applicator” means a person authorized by the Nantucket Board of Health or
Health Agent to apply fertilizer for commercial purposes.
“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.” Pursuant to Section 5.1 of
this Act, the Nantucket BMP is adopted by the Board of Health and is generally available
to the public.
“‘Nonpoint Pollution’ means contamination which includes but is not limited to
sediments, nutrients, pathogens, and pollutants that collect in water-bodies from
stormwater runoff.” (301 CMR 26.03, “Definitions” in the “Coastal Pollutant
Remediation Program”)
“Nonpoint Pollution Source (NPS)” means any activity releasing pollution 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 organisms in the Kingdom Plantae that, for the purposes of this
Act, are used domestically.
“Point-Source water pollution” comes from stationary locations such as sewage treatment
plants, factories, and ships and is subject to regulatory control under the Clean Water Act.
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“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.
“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 with the exception of the following: coastal and
inland banks, beaches, coastal dunes, dune fields, and lands subject to coastal storm
flowage, inland or coastal flooding or inundation, or within 100 feet of the hundred-year
storm line, or within any area located within the geographic boundaries of the resource
areas that are habitat for rare/significant wildlife and/or fauna.
SECTION 5. STANDARDS OF PERFORMANCE
5.1. Nantucket Best Management Practices
There shall be available at all times a Nantucket Best Management Practices (Nantucket
BMP) document that is approved by the Board of Health that is based on principles of
soil science appropriate to Nantucket soils and climate. The initial version was
developed by a broad group of stakeholders representing diverse interests and has been
reviewed by soil and turf scientists and educators. Amendment of the Nantucket BMP
shall be based on scientific information and shall be made by a similarly broad group.
Such changes may go into effect only after scientific review by knowledgeable soil
scientists and shall require a vote of a supermajority of the Board of Health.
5.2. Prohibited Conduct. Applicators shall not:
5.2.1. 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;
5.2.2. apply fertilizer between November 1st and the following March 31st of any
calendar year;
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5.2.3. apply, spill, or deposit fertilizer on any impervious surface and fail to
remove the applied, spilled, or deposited fertilizer immediately, or to apply
fertilizer in a manner that allows fertilizer to enter into storm drains;
5.2.4. apply fertilizer closer than 100 feet to any water body as defined above
unless a permit is obtained from the Nantucket Conservation Commission
allowing such activity [This reflects current Nantucket Wetland Regulations];
5.2.5. deposit grass clippings, leaves, or any other vegetative debris into or within
25 feet of 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.
5.3. Fertilizer Content and Application Requirements for Applicators
5.3.1. The following restrictions shall apply to the content of fertilizer to be
applied to turf, other plants, or soil.
5.3.1.1. An applicator shall not apply any fertilizer unless the fertilizer
contains a minimum of 70 percent slow-release nitrogen as the nitrogen
additive; exemptions to this standard may be allowed, as in Section 5.3.3.,
to licensed applicators who follow the Nantucket BMP.
5.3.1.2. An applicator shall not apply fertilizer that contains phosphorus,
unless a soil test indicates a phosphorus deficiency and it is applied in
conformance with the Nantucket BMP.
5.3.2. Fertilizer application shall comply with the Nantucket BMP. A single
application for turf shall not exceed 1.25 pounds of actual nitrogen per thousand
square feet, and the annual rate shall not exceed 4.0 pounds of actual nitrogen per
thousand square feet; and a single application for trees, shrubs, herbs and other
ornamental plantings shall not exceed 0.75 pounds of actual nitrogen per thousand
square feet, and the annual rate shall not exceed 2.0 pounds of actual nitrogen per
thousand square feet.
5.3.3. The fertilizer application requirements of Section 5.3.2. of this Act shall
apply without limitation to the application of combination products.
5.3.4. Foliar fertilizers shall be applied in compliance with the Nantucket BMP.
The nitrogen application rate of foliar products shall be included when calculating
the annual total nitrogen application rate.
5.3.5. Compost and compost tea shall be applied in compliance of the Nantucket
BMP. The nitrogen application rate of compost and compost tea shall be included
when calculating the annual total nitrogen application rate.
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5.4. Exemptions. The following activities shall be exempt from Sections 5.2. and 5.3. of
this Act:
5.4.1. Application of phosphorus when establishing vegetation, after land
disturbance, and when re-establishing or repairing turf after substantial damage,
provided the application is in compliance with the Nantucket BMP.. When
applied within 100 ft of any waterbody such application requires a permit from
the Nantucket Conservation Commission [This reflects current Nantucket
Wetland Regulations].
5.4.2. Application of fertilizer by a licensed applicator when following the
recommendations of the Nantucket BMP; a written record must accompany this
exemption.
5.4.3. Fertilizer may be applied by landscape professionals without a license, in
accordance with the Nantucket BMP, during the interim between passage of this
Act and the development of a licensing program by the Nantucket Board of
Health.
5.4.4. Application of fertilizer for agricultural and horticultural uses, including
sod farms.
SECTION 6. EDUCATION, LICENSURE, ENFORCEMENT, AND PENALTIES.
6.1. Education
6.1.1. The Town of Nantucket Board of Health shall maintain a program of
fertilizer education that is based on the Nantucket BMP.
6.1.2. The Town’s Board of Health shall administer a test, passage of which shall
demonstrate an individual’s participation in fertilizer education.
6.1.3. Summaries of fertilizer application requirements will be made readily
available to the public by the Town.
6.2. Licensure
6.2.1. 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.
6.2.2. Persons who pass the test described in 6.1.2. may apply to the Board of
Health for a fertilizer license.
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6.2.3. Fertilizer licenses shall be valid for a period of three years from the date of
issuance; renewal requires obtaining the required amount of continuing education
hours or passage of the current test.
6.3. Enforcement
Enforcement of this Act shall be by the Nantucket Board of Health or its agent.
6.4. Penalties
6.4.1. Application of fertilizer in violation of this Act by an unlicensed person
shall be punished by a fine of three hundred dollars ($300.00).
6.4.2. Application of fertilizer by a licensed person in violation of this Act shall
be punished by loss of license and/or a fine of three hundred dollars ($300.00).
6.4.3. Subsequent offenses shall be punished by fines of five hundred dollars
($500.00) per offense.
6.4.4. 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
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
This Act is based on the Nantucket BMP and was developed by a broad group of stakeholders
representing diverse interests and has been reviewed by soil and turf scientists and educators.
Amendment of 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 and shall require a vote of a supermajority of the Nantucket Board
of Health.
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: 2010-11-23]
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