HomeMy WebLinkAboutArticle 68 Work Group Submissions to the BOS January 11, 2012_201401221138345577
ARTICLE 68 WORK GROUP SUBMISSIONS TO THE BOARD OF SELECTMEN
January 11, 2012
1. THE DRAFT WARRANT ARTICLE RE-APPROVING THE HOME-RULE
PETITION.
To see if the Town will vote to re-authorize the Board of Selectmen to petition the
General Court to enact Special Legislation so as to carry-out the vote taken under Article
68 of the April 6, 2010, Annual Town Meeting, as follows; provided the General Court
may make clerical or editorial changes of form only to the bill, unless the Board of
Selectmen approves amendments to the bill before enactment by the General Court. The
Board of Selectmen is hereby authorized to approve amendments which shall be within
the scope of the general public objectives of this petition, or take any other action
relative thereto;
An Act Regulating the Content and Application of Fertilizer Used in the Town of
Nantucket.
Be it enacted by the Senate and House of Representatives in General Court assembled,
and by the authority of the same as follows:
SECTION 1. FINDINGS
1.1. There is sound scientific evidence to conclude that nitrogen and phosphorus
in fertilizers are contaminants that negatively affect fresh and salt waters when
present in excessive amounts. These excessive amounts of nitrogen and
phosphorus contribute to undesirable algal and aquatic plant growth within all
Nantucket water bodies. This undesirable algal and aquatic plant growth has a
adverse affect on public health through the degradation of waters used for
drinking water, shellfishing, and recreational swimming and boating.
SECTION 2. PURPOSE
2.1. It is necessary to control by regulation in the Town of Nantucket the use of
fertilizer that contains phosphorus and nitrogen so as to improve the water quality
of the Town.
2.2. The soils of Nantucket are unique insofar as Nantucket has significant
amounts of coarse, sandy soils that are subject to rapid water infiltration,
percolation and leaching of nutrients, and such unique local conditions require
that Nantucket retain localized control over the amounts of nitrogen and
phosphorus added to soils through the application of fertilizers.
2.3. The Nantucket Board of Health has established a fertilizer regulation based
on Best Management Practices developed by a broad group of stakeholders
representing diverse interests that has been reviewed by soil and turf scientists and
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educators and has been determined appropriate for the unique soils and climate of
Nantucket.
2.4. This Act provides for a reduction of nitrogen and phosphorus going into
Nantucket’s waters and wetlands by means of an organized system of education,
licensure, and regulation of practice and 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. LOCAL REGULATION BY THE TOWN OF NANTUCKET
3.1. This Act shall apply to the content and application of fertilizer used in the
Town of Nantucket, notwithstanding any General or Special law to the contrary,
including but not limited to any General or Special law conferring exclusive
authority upon the Department of Agriculture to regulate and control the
application of fertilizers elsewhere in the Commonwealth.
3.2. The Town of Nantucket is hereby specially authorized to regulate the content
and application of fertilizer used in the Town of Nantucket either through a
general bylaw enacted by a majority vote of its Town Meeting and/or through a
regulation adopted by its Board of Health in accordance with the procedure set
forth in Section 3.3 of this Act.
3.3. Notwithstanding the requirements of G.L. c. 111, §31, no such Board of
Health regulations shall be adopted or amended until such time as the Board of
Health shall hold a public hearing thereon, notice of the time, place and subject
matter of which, sufficient for identification, shall be given by publishing in a
newspaper of general circulation in the Town once in each of two successive
weeks, the first publication to be not less than fourteen days prior to the date set
for such hearing. No such amendment shall be effective unless the proposed
amendment has been reviewed and commented upon by soil and turf scientists
and educators and it is passed by a four-fifths vote of the Board of Health.
SECTION 4. EFFECTIVE DATE
This act shall take effect upon passage.
2. DRAFT BOARD OF HEALTH REGULATION FOR THE CONTROL OF
FERTILIZER APPLICATION.
A Proposal to the Board of Selectmen of the Town and County of Nantucket from the
Article 68 Work Group for Regulations Enforced by the Board of Health of the Town of
Nantucket (December 7, 2011)
With Town Counsel Comments – December 30, 2011
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BOARD OF HEALTH REGULATION ON THE CONTENT AND APPLICATION OF
FERTILIZER USED IN THE TOWN OF NANTUCKET
SECTION 1. FINDINGS
1.1. There is sound scientific evidence to conclude that nitrogen and phosphorus
in fertilizers are contaminants that negatively affect fresh and salt waters when
present in excessive amounts. These excessive amounts of nitrogen and
phosphorus contribute to undesirable algal and aquatic plant growth within all
Nantucket water bodies. This undesirable algal and aquatic plant growth has a
adverse affect on public health through the degradation of waters used for
drinking water, shellfishing, and recreational swimming and boating.
1.2. Nantucket has significant amounts of glacially deposited coarse, sandy soils
that are subject to rapid water infiltration, percolation, and leaching of nutrients.
These soil characteristics mean that normal agronomic practices of soil
fertilization and amendment do not always apply on Nantucket.
SECTION 2. PURPOSE
2.1. It is necessary to control by regulation in the Town of Nantucket the use of
fertilizer that contains phosphorus and nitrogen so as to improve the water quality
of the Town.
2.2. This Regulation provides for a reduction of nitrogen and phosphorus going
into Nantucket’s waters and wetlands by means of an organized system of
education, licensure, and regulation of practice and 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. This Regulation is adopted by the Town of Nantucket's Board of Health as
authorized by Massachusetts General Laws, Chapter 111, section 31.
SECTION 4. DEFINITIONS; for the purposes of this Regulation, 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 this
Regulation, agriculture means the raising of crops for commercial sale, where the
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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 Regulation and
pursuant to Section 5.1 of this Regulation, 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 Regulation, horticulture means the raising of flowers, fruits,
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vegetables, berries, herbs, nuts, and other similar products 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 “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 Regulation, 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.
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“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.
“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
The Board of Health shall adopt the document known as the Nantucket Best
Management Practices (“Nantucket BMP”), which shall be incorporated into and
be part of this Regulation. The initial version of the Nantucket BMP was
developed by a broad group of stakeholders representing diverse interests and has
been reviewed by soil and turf scientists and educators, and is based on principles
of soil science appropriate to Nantucket soils and climate. Therefore,
notwithstanding the requirements of G.L. c. 111, §31, no amendment to the
Nantucket BMP shall be adopted until such time as the Board of Health shall hold
a public hearing thereon, notice of the time, place and subject matter of which,
sufficient for identification, shall be given by publishing in a newspaper of
general circulation in the Town once in each of two successive weeks, the first
publication to be not less than fourteen days prior to the date set for such hearing.
No such amendment shall be effective unless the proposed amendment has been
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reviewed and commented upon by soil and turf scientists and educators and it is
passed by a four-fifths vote of the Board of Health.
5.2. Performance Standards for Non-Licensed Applicators:
Applicators who do not hold Fertilizer Licenses issued in accordance with
Section 6.2 of this Regulation shall comply with the following standards:
5.2.1. Applicators shall not 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. Applicators shall not apply fertilizer between October 16th and the
following April 14th;
5.2.3. Applicators shall not 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. Applicators shall not 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. Applicators shall not 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.
5.2.6. The following restrictions shall apply to the content of fertilizer to
be applied to turf, other plants, or soil by non-licensed Applicators.
5.2.6.1. An Applicator shall not apply more than 0.25 lb N/1000 sq
ft of fast-release nitrogen fertilizer in any one application.
5.2.6.2. 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.
5.2.6.3. Applications of compost, which contain phosphorus, may
only be applied in conformance with the Nantucket BMP.
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5.2.7. A single application of nitrogen for turf shall not exceed 0.5 pounds
of actual nitrogen per thousand square feet and the annual rate shall not
exceed 3.0 pounds of actual nitrogen per thousand square feet; a single
application for trees, shrubs, herbs and other ornamental plantings shall
not exceed 0.5 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.
5.2.8. Applications of nitrogen shall be done at intervals of no less than
two weeks until the annual maximum is reached.
5.2.9. The fertilizer application requirements of Section 5.2.7. shall apply
without limitation to the application of combination products.
5.2.10. 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.
5.2.11. Compost and compost tea shall be applied in compliance with the
Nantucket BMP. The nitrogen and phosphate application rates of compost
and compost tea shall be included when calculating the annual total
fertilizer application rate.
5.3 Performance Standards for Licensed Applicators
5.3.1. Licensed Applicators shall be exempt from the performance
standards set forth in Section 5.2 of this Regulation, provided that they comply
with the requirements of Section 5.3.2 of this Regulation.
5.3.2. All applications of fertilizer by a Licensed Applicator shall be in
accordance with the Nantucket BMP, as amended at the time of the application.
5.4. Exemptions. The following activities shall be exempt from Sections 5.2. and
5.3.
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 water-body such application
requires a permit from the Nantucket Conservation Commission [This
reflects current Nantucket Wetland Regulations].
5.4.2. Application of fertilizer for agricultural and horticultural uses,
including sod farms.
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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 an assessment to
determine individuals’ proficiency of the Nantucket BMP.
6.1.3. Summaries of fertilizer application requirements will be made
readily available to the public by the Board of Health.
6.2. Licensure
6.2.1. No Landscape Professional shall apply fertilizer in the Town of
Nantucket without a license issued by the Board of Health in accordance
with this Regulation. Such a license may be held but is not required by
property-owners who apply fertilizer on their own property.
6.2.2. Fertilizer Licenses shall be effective beginning on January 1st in
the year of issue, and shall be in effect for three calendar years, unless
previously revoked in accordance with Section 6.3 of this Regulation.
6.2.3. Fertilizer Licenses may be renewed on application. Renewal
applications shall be submitted to the Board of Health no later than
December 1st of the year preceding the year for which renewal is sought.
6.2.4. Any application for a Fertilizer License or for renewal of a
Fertilizer License shall be accompanied by a fee in the amount of $100.00;
and certification that the applicant has shown proficiency of the
Nantucket BMP as determined by the Board of Health, as set forth in
Section 6.1.2 of this Regulation.
6.2.5. Any Landscape Professional licensed under this Regulation shall
keep said license in his/her possession which shall be readily available for
display. The License shall indicate the license number and shall include
the Licensee’s signature and date of the license expiration. The Licensee
shall display such license when requested to do so by any officer of the
Nantucket Police Department or Board of Health.
6.3. Enforcement
6.3.1. License Suspension or Revocation
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The Board of Health may suspend or revoke any license issued pursuant to
this Regulation or any other applicable law. Such revocation or suspension may
take place after a hearing held by the Board of Health of which the license holder
is given seven (7) days written notice. Such notice shall be deemed given upon
mailing same to the address listed on the license application.
6.3.2. Non-Criminal Disposition
This Regulation may be enforced by the Health Director, Assistant Health
Officer and/or any Police Officer of the Town of Nantucket .
Whoever violates any provision of this Regulation may be penalized by a
noncriminal disposition process as provided in G.L. c.40, §21D and the Town’s
non-criminal disposition by-law, Sections 1-2, 1-3, 1-4, 1-5, and 1-6 of the Code
of the Town of Nantucket. If noncriminal disposition is elected, then any person
who violates any provision of this Regulation shall be subject to a penalty in the
amount of three hundred dollars ($300.00) per day for each day of violation,
commencing ten days following day of receipt of written notice from the Board of
Health. Each day or portion thereof shall constitute a separate offense. If more
than one, each condition violated shall constitute a separate offense.
6.3.3. Other
Whoever violates any provision of this Regulation may be penalized by
indictment or on complaint brought in the district court. Except as may be
otherwise provided by law and as the district court may see fit to impose, the
maximum penalty for each violation or offense shall be one thousand dollars
($1,000). Each day or portion thereof shall constitute a separate offense. If more
than one, each condition violated shall constitute a separate offense.
The Board of Health may enforce this Regulation or enjoin violations
thereof through any lawful process, and the election of one remedy by the Board
of Health shall not preclude enforcement through any other lawful means.
SECTION 7. SEVERABILITY CLAUSE
Should any section, part or provision of this Regulation 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
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This Regulation is based on the Nantucket BMP and were developed by a broad group of
stakeholders representing diverse interests and has been reviewed by soil and turf
scientists and educators. Therefore, notwithstanding the requirements of G.L. c. 111,
§31, no amendment to this Regulation shall be adopted until such time as the Board of
Health shall hold a public hearing thereon, notice of the time, place and subject matter of
which, sufficient for identification, shall be given by publishing in a newspaper of
general circulation in the Town once in each of two successive weeks, the first
publication to be not less than fourteen days prior to the date set for such hearing. No
such amendment shall be effective unless the proposed amendment has been reviewed
and commented upon by soil and turf scientists and educators and it is passed by a four-
fifths vote of the Board of Health.
SECTION 9. EFFECTIVE DATE
This Regulation shall take effect upon publication pursuant to G.L. c. 111, §31.
SECTION 10. INTERIM PROVISIONS
Landscape Professionals may apply fertilizer without a license during the interim period
between the effective date of this Regulation and the development of a licensing program
by the Nantucket Board of Health, provided that they comply with Section 5.3.2 of this
Regulation.
[Printed: 2012-01-12]