HomeMy WebLinkAboutRegulation Draft July 31, 2010_201401221138491359
A Copy of ATM Warrant Article 68, as Proposed
Taken from www.nantucket-ma.gov at http://www.nantucket-
ma.gov/Pages/NantucketMA_TownMeeting/2010atm/2010ATMwarrantFCmotion
sFINAL.pdf. on May 16, 2010
ARTICLE 68
(Home Rule Petition: An Act Regulating the Content and Application of Fertilizer
Used in the Town of Nantucket)
Moved that the Board of Selectmen be authorized to request representatives in
the General Court to introduce legislation seeking a special act 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 of legislation on the subject of regulating the content
and application of fertilizer used in the Town of Nantucket.
AN ACT REGULATING THE CONTENT AND APPLICATION OF FERTILIZER
USED IN THE TOWN OF NANTUCKET
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 and increase the risk of deleterious
impacts on public health and general welfare.
1.3. The Nantucket and Madaket Harbors, the surrounding coastal waters,
and Nantucket’s ponds are essential components of the recreation and
tourism and commercial fisheries industries in the Town of Nantucket.
1.4. Applying 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 they are dormant, thus allowing nutrients
to run off into Nantucket’s Harbors and ponds in increased amounts.
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Deleted: 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:
Comment [S1]: This is the entirety of
Article 68 as amended and passed at
ATM.
Comment [S2]: Lucas (M), Misurelli
(S), unanimous to remove
“manufactured.”
Deleted: manufactured
Deleted:
Deleted: SECTION
Deleted: and Madaket Harbors watershed
Comment [S3]:
Comment [S4]: Deletion by Misurelli (M) and others (S); unanimous.
Comment [S5]: Insertion suggested by Saperstein based on comments during
discussion.
Deleted: , especially for hard clams,
bay scallops and other species
Deleted: Page 101 Town of
Deleted:
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Comment [S6]: Suggestion by
Deleted: y
Deleted: SECTION
Deleted: turf
Comment [S7]: The substitution of
Deleted: turf
Deleted: SECTION
Deleted: turf
Deleted: SECTION
Deleted: Turf does
Deleted: grass is
... [2]
... [1]
... [3]
2
1.7. Heavy precipitation, snowmelt, and excessive irrigation greatly
increase the amount of nitrogen and phosphorus that run off into adjacent
water-bodies.
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 control by regulation in the Town
of Nantucket the use of fertilizer that contains phosphorus and high
percentages of fast-acting nitrogen so as to improve the water quality of
the Town.
2.2. It is imperative that restrictions on the amount of nitrogen and
phosphorus discharged into the Nantucket and Madaket Harbors
watershed be imposed so as to protect the integrity of Nantucket’s waters
and ponds for present and future generations.
2.3. This Act (a.k.a ordinance, regulation) 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 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.
SECTION 3. AUTHORITY
3.1. Article 68, as amended and passed by the Annual Town Meeting of
Nantucket in April 6, 2010, adjourned session, asked the Board of
Selectmen to devise legislation or other such vehicle to reduce the amount
of nitrogen and phosphorus going into its waters.
3.2. 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.
3.3. 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.
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Comment [S8]: Boyce (M) Saperstein
(S)
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Comment [S9]: Draft language by
Saperstein that will need to be reviewed
by the Work Group.
Deleted: SECTION 9.
Comment [S10]: Saperstein draft
language for review.
Comment [S11]: This section is
newly drafted by Saperstein and should
be reviewed by the Work Group
3
3.4. 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).
3.5. 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.”
3.6. The Massachusetts Estuaries Project (MEP), whose reports are
available from the DEP, states that, 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 4. DEFINITIONS; For the purposes of this Act, the following words
shall have the following meanings unless the context clearly indicates a different
meaning:
“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.
“Applicator” means any person who applies fertilizer to plants.
“Best Management Practice (BMP) means a voluntary sequence of
activities designed to limit a nonpoint pollution source.
“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.
“Conservation Farm Plan” means a formal plan filed by farms and farm
units found to be degrading the quality of water beyond the promulgated
Water Quality Standards.
“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.
“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 such as contained in dolomite, limestone, or lime.
“Foliar Fertilizer” means any fertilizer product designed for uptake into a
plant through its leaves; normally foliar products are sprayed directly onto
a plant.
Deleted: 10
Deleted: turf
Deleted: turf
Deleted: turf
Comment [S12]: Suggested by Ms
Marcus and agreed to by consent.
4
“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.
“Landscaping” means establishment by sod or seeding, renovation,
maintenance, fertilization or pest management of turf and other plantings.
“Nantucket” is the Town and County of Nantucket and all of its coastal
waters.
“’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”)
“Nonpoint Pollution Source (NPS)” means any activity releasing pollution
and that is not deemed point source.
“Nutrient” means any of the approximately 16 elements needed for growth
of a plant; normally carbon, hydrogen, oxygen, and nitrogen, available
from air and water, are not included in the list of nutrients.
“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 vegetable kingdom 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.
“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.”
"Water-bodies" includes, but is 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 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:
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.
Deleted: turf
Deleted: ¶Page 102 Town of Nantucket 2010
Annual Town Meeting Warrant with
Finance Committee Motions¶
¶
Deleted: turf
Deleted: turf
Deleted: following the protocol for such a test established by University of Massachusetts Cooperative Research Extension
Deleted: “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.¶
Comment [S13]: Needs to be
renumbered.
Comment [S14]: “Performance” is
the suggested title.
Deleted: 11. Prohibited Conduct
Deleted: ¶
A.
Comment [S15]: Storm events need
to be defined explicitly but simply. The
regulations could say something like
“storm events leading to excessive run-
off or percolation into the groundwater” while the BMP discusses storm frequencies and amounts and ways to
predict storm events.
Deleted: 1
5
b. apply fertilizer between November 15 and April 1 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:
i. An applicator shall not apply any fertilizer to turf unless the
fertilizer contains a minimum of 70% 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
recommendations of the Northeast Organic Farming
Association Standards for Organic Land Care.
b. Fertilizer application shall not exceed the manufacturer’s
recommended rate.
c. The above-referenced application requirements shall apply
without limitation to the application of pesticide,herbicide, and
fertilizer mixtures, including but not limited to, combination
products.
d. Foliar Products (a place holder)
5.3. Exemptions. The following activities shall be exempt from Section 12
of this Act:
a. Application of phosphorus when:
i. Establishing vegetation for the first time, such as after land
disturbance, provided the application is in accordance with
the Northeast Organic Farmers Association Standards for
Organic Land Care.
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.
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Comment [S16]: One suggestion was
to use November 15 instead of Dec 1.
Deleted: 2
Deleted: December 1
Deleted: 3
Comment [S17]: This number is
displaced by Con Com regulations for
wetlands. (100 ft); others have concern
that 25 feet is too close.
Comment [S18]: A more explicit
Deleted: 4
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Comment [S19]: ConCom requires
Deleted: SECTION 12.
Deleted: A
Deleted: ¶
Comment [S20]: Only turf or on all
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Comment [S21]: Exception for
Deleted: 2
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Comment [S22]: Do we use NOFA
Deleted: B
Deleted: C
Comment [S23]: “Combination
Deleted: “weed and feed”
Deleted: SECTION 13.
Deleted: ¶
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Deleted: a
Comment [S24]: “Farming” More
Deleted: b
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Comment [S25]: Match word use to
Comment [S26]: “Agricultural” is a
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SECTION 6. [A place-holder for additional requirements]
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. Effective Date
This Act shall take effect on January 1, 2011.
(Board of Selectmen for Harbor Plan Implementation Committee)
FINANCE COMMITTEE MOTION: Moved not to adopt the Article.
Page 104 Town of Nantucket 2010 Annual Town Meeting Warrant with Finance Committee Motions
BOARD OF SELECTMEN COMMENT: The Board of Selectmen will provide a
comment at Town Meeting.
Deleted: 14
Comment [S27]: It may be boiler
plate but it is important to retain.
Deleted: 15
Page 1: [1] Deleted Saperstein 5/20/2010 11:24:00 AM
Page 101 Town of Nantucket 2010 Annual Town Meeting Warrant with Finance Committee Motions
SECTION
Page 1: [2] Comment [S6] Saperstein 5/20/2010 2:43:00 PM
Suggestion by Willauer and accepted by consensus
Page 1: [3] Comment [S7] Saperstein 5/20/2010 2:43:00 PM
The substitution of plant and/or planting for turf throughout the document was moved by Saperstein,
seconded by Collier and agreed to unanimously.
Page 5: [4] Comment [S18] Saperstein 7/8/2010 2:15:00 PM
A more explicit term or phrase should be used instead of “water bodies.”
Page 5: [5] Comment [S19] Saperstein 7/8/2010 1:48:00 PM
ConCom requires no closer than 25 ft to wetlands.
Page 5: [6] Deleted Saperstein 7/31/2010 9:47:00 AM
Page 103 Town of Nantucket 2010 Annual Town Meeting Warrant with Finance Committee
Motions
Page 5: [7] Comment [S20] Saperstein 7/8/2010 1:49:00 PM
Only turf or on all landscaped lands to include beds and plantings?
Page 5: [8] Comment [S21] Saperstein 7/8/2010 1:50:00 PM
Exception for garden beds (10-10-10)?
Page 5: [9] Comment [S22] Saperstein 7/8/2010 1:52:00 PM
Do we use NOFA or UMass Extension or some other recognized agency such as NRCS of USDA? Should
we reduce the strictness of 12.A.3. in the regulation and put the onus on language to go into the BMP?
Page 5: [10] Comment [S23] Saperstein 7/8/2010 1:53:00 PM
“Combination Products” preferred. We may need a section D. for foliar fertilizer.
Page 5: [11] Deleted Saperstein 7/31/2010 9:51:00 AM
A.
Page 5: [12] Comment [S24] Saperstein 7/8/2010 1:54:00 PM
“Farming” More importantly, should we use NOFA or something broader, i.e. UMass Ext or NRCS?
Page 5: [13] Comment [S25] Saperstein 7/8/2010 1:55:00 PM
Match word use to same as above.
Page 5: [14] Comment [S26] Saperstein 7/8/2010 2:16:00 PM
“Agricultural” is a broad word meaning farms and farming systems. “Horticultural” has a broad meaning
(plant science) and also a more narrow one: flowers, fruit, nursery, nut, and vegetable. Perhaps what is
desired is an indication of “commercial” purposes.