HomeMy WebLinkAboutArticle 68 Wrk Grp Minutes - 11 22 2010_201402041900226319ARTICLE 68 WORK GROUP
Meeting of November 22, 2010, at 10:30 am
2 Fairgrounds Road Conference Room
Final Minutes
ATTENDING
Members: Peter Boyce, Cormac Collier (arrived at 10:37 am), Bam LaFarge, Mark
Lucas, Wendy McCrae (arrived at 10:35 am), Mike Misurelli, Seth Rutherford, Lee
Saperstein, Ernie Steinauer, Lucinda Young (Chair). A quorum existed at the time that
the meeting opened.
Guests: None
Absent: Caroline Ellis, Dave Fronzuto, Richard Ray, Jim Sutherland (Administrative
Assistant)
CALL TO ORDER
Chair Young called the meeting to order at 10:31 am; a quorum was present.
REVIEW AND APPROVE PRELIMINARY AGENDA
The preliminary agenda, which was projected by Secretary Saperstein onto the screen,
was reviewed quickly; Saperstein moved approval, LaFarge seconded, and approval was
unanimous
REVIEW AND APPROVE MINUTES OF THE MEETING OF NOVEMBER 9,
2010
The draft minutes of the meeting of November 9, 2010, were distributed previously.
Chair Young asked if there were changes or edits to be made. Hearing none, she asked
for a motion: made by Saperstein, seconded by LaFarge and approved unanimously. The
final minutes will be posted on the Committee’s section of the Town’s web site.
CHAIR'S COMMENTS AND ANNOUNCEMENTS; COMMENTS FROM THE
WORKGROUP
Chair Young thanked the group for appearing at this extraordinary meeting of the Article
68 Work Group, which was made necessary by members’ holiday schedules. She
reminded the group that the main purpose of this meeting was to register a formal vote on
the draft Home Rule Petition and Board of Health Regulations. The next regularly
scheduled meeting on November 30th (Conference Room of 2 Fairgrounds Road at 10:30
am) will be devoted to creating a final draft of the balance of the Work Group’s
recommendations to the Board of Selectmen. Chair Young indicated that she hoped to
make a presentation to the Board of Selectmen with all recommendations contained in
one package and that probably would be on December 15thth. Secretary’s note: the
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timeline for drafting and presenting recommendations was discussed further at the end of
the meeting. Several dates were discussed; see the final section of these minutes.
FINAL VOTE ON DRAFT REGULATORY RECOMMENDATIONS
(CIRCULATED WITH LAST ANNOUNCEMENT OF THIS MEETING)
Home Rule Petition, HRP, statute
Chair Young asked any further amendments to the draft HRP. Secretary Saperstein
related that he had worked with Dirk Roggeveen, Administrator of the Conservation
Commission, to edit punctuation and make uniform the use of capitals. He also said that
he had nearly made a substantive change in the guise of editing and so wanted to be
careful to make sure that the group knew about any such changes. He presented only
one: the insertion of “Nantucket” before “Board of Health” in Section 8. on amendments.
The group acceded to this change.
Chair Young asked if there were further amendments, and hearing none Vice-Chair Peter
Boyce moved the adoption and Mark Lucas seconded it. There was no further discussion
and the favorable vote was unanimous. This endorsement means that the HRP is ready to
be presented to the Board of Selectmen for their further submission to the State.
Board of Health, BOH, Regulations.
Chair Young asked if the group had any amendments to the draft Board of Health
Regulations. Several people commented that it looked very much like the HRP.
Secretary Saperstein said that the Standards of Performance were almost the same
(Sections 4., 5., and parts of 6.), while the introductory sections 1., 2., and 3. were
different and included Richard Ray’s suggestions for the language of regulatory material
as opposed to statutory. Similar changes were pointed out in Section 6. on penalties.
These answers appeared to be satisfactory as there were no more questions. Ernie
Steinauer suggested a capitalization change to the titles of the Health Officers in Section
6. and this was accepted unanimously.
At 10:45 am, Wendy McCrae moved adoption of the new BOH Regulations for the
application of fertilizer; this motion was seconded by Bam LaFarge. The vote was
unanimously in favor. These regulations, also, are now ready for transfer to the Board of
Selectmen.
ISSUES TO BE DISCUSSED AT THE NEXT MEETING
Chair Young reminded the group that we would be discussing the draft set of
recommendations to the BOS at the meeting on November 30 with the goal of submitting
a complete set of recommendations to town administration by December 8 in order to be
on the agenda for the December 15th BOS meeting. She reminded WG members of the
fundamental importance of the Nantucket Best Management Practices Plan, BMP, and
that, because it is still being worked on by a variety of members of the landscape
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community, it would be included in the recommendations to the BOS with the
understanding that it would be in draft form at that time. She reported that she had just
read the current draft and wasimpressed with the content, but added that it still needs
review and editing and that she had agreed to devote time to work on it. The BMP sub
group will have another portion of the revisions done by tomorrow (Tuesday the 23rd)
Questions on timing and distribution of the draft and issues of public availability led to a
lot of discussion and the presentation of several hypothetical time lines for work on
refinement and review of the draft BMP. WG member Steinauer expressed concern that
the draft BMP was not being shared openly with the whole group. Chair Young asked for
specific suggestions from the WG as to how to best proceed with refining and reviewing
the BMP both within the WG and with the community at large. Mr Steinauer agreed to
review and comment on the current draft which had just been sent out to several members
of the WG, including Mr LaFarge, Mr Boyce, and chair Young. They had agreed to give
it a once over review with fresh eyes to aid the WG members who have worked on it
these past few months before distribution to the rest of the WG. There was discussion of
having the current version of the BMP, or a potentially polished and edited version of the
BMP distributed to the rest of the WG at this time or by November 30th. No clear
consensus was reached as to the detailed path of review and refinement of the draft BMP.
Mr. Collier suggested an additional meeting devoted to the BMP for December 7th which
was accepted by the WG.
There was also discussion of whether or not the Article 68 WG makes one
comprehensive presentation to the Board of Selectmen or two partial presentations. The
first strategy has the benefit of being comprehensively neat and of having a draft BMP
that was thorough and reviewed by experts. The latter strategy would allow the BOS to
start work on the regulatory drafts in anticipation of sending the HRP to the State and
preparing a public hearing for the regulations. An early transmission of the regulatory
packages has the down side, however, of having only a draft BMP that might not yet be
ready for public release.
The pros and cons of the two strategies were discussed at length. Peter Boyce and Lee
Saperstein argued for early release of the draft regulations and home-rule petition.
Several others felt that some delay would not hurt and would allow for a draft BMP that
would be much closer to the final, published version. Eventually the group, led by Mr
Collier, listed all of the things that they would like to see happen to the BMP and put
some tentative dates onto these to create a time line to completion of the BMP: internal
review and editing, professional editing, review by UMass and other experts, review by
the landscapers’ community, and public presentation or hearings.
Given the need to submit material to the BOS by December 8st for their meeting on
December 15th, it was agreed that the next meeting of the WG on Tuesday, November
30th at 10:30 am would allow time to prepare the presentation of recommendations to the
BOS. It was also agreed that an additional meeting of the WG on Dec 7 would allow for
review of the draft BMP by the whole work group. Mr. Saperstein will arrange for a room
and notify people of time and place shortly. Any member who could not attend on the
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30th was asked to review the previously distributed draft list of recommendations
carefully and, perhaps, give her or his written (e-mail) proxy to the Chair or other
designated person.
Here is how it might work:
November 23 or 24, 2010. Working version of BMP goes out to sub-group, Chair
Young and E. Steinauer
Chair Young meets with Town Administrator and Chair of
BOS to get input on presentation strategy for BOS.
November 30th Art. 68 WG meets, reviews, refines, and votes on BOS
recommendations. Updated draft BMP distributed to all WG
members for review.
December 1st Draft BMP is given to outside editor if needed (Kim Horyn)
for improvement to presentation not content. Editor is
expected to return manuscript by Dec. 15th.
December 8th Possible day for presentation of draft HRP and draft BOH
Regs to BOS. BMP would be only in draft format and
could be referenced but would not be ready for public
release. Other recommendations postponed to later date.
December 7th WG meets at regular time to review BMP draft and hold
vote on its readiness for public release as a draft intended
for public review. If the vote is positive, the BMP would go
to island landscapers and other interested parties for review
and input; it would also be distributed to members of the
scientific community including the UMass Extension
Service for their review. If the vote is positive, it would
also be included in the presentation as a draft to the BOS on
December 15th.
December 8th Possible alternative date for presentation of regulatory
package to BOSMaterial to BOS for Dec 15 presentation,
including draft of BMP in whatever state it is in.
December 15th Possible date for inclusion of draft BMP to BOS
January 2011 February
2011
Preparation of final manuscript of BMP for printing and
web distribution and special meeting of WG to vote
approval of final BMP.
ADJOURNMENT
Adjournment was suggested by Chair Young at 11:35 am; it was moved by Bam LaFarge
and seconded by Mark Lucas and the group acceded unanimously. Chair Young thanked
Ms McCrae for bringing refreshments.
Minutes taken by Lee W. Saperstein, Secretary
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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 (November 2, 2010)
BOARD OF HEALTH REGULATIONS 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 algae and aquatic plant growth within all
Nantucket water bodies.
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 high percentages of fast-acting nitrogen so
as to improve the water quality of the Town.
2.2. These Regulations provide 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. These Regulations are adopted by the Town of Nantucket's Board of Health
as authorized by Massachusetts General Laws, Chapter 111, Subsection 31.
SECTION 4. DEFINITIONS; For the purposes of these Regulations, 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.
2
“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 these Regulations and
pursuant to Section 5.1 of these Regulations, 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 these Regulations, horticulture means the raising of flowers,
fruits, 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.”
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“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 these Regulations, 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 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. Amendment of the Nantucket BMP shall be based on
scientific information and shall be initiated 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;
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5.2.2. apply fertilizer between November 1st and the following March 31st
of any calendar year;
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 these
Regulations shall apply without limitation to the application of
combination products.
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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.
5.4. Exemptions. The following activities shall be exempt from Sections 5.2. and
5.3. of these Regulations:
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 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 adoption of these Regulations 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.
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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.
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
The Health Director and Assistant Health Officer are hereby empowered to
enforce this Section of the Board of Health Regulations.
6.4. Penalties
Without limiting any other remedies or penalties, the Board of health may punish
any person or entity that violates these Regulations by assessing a penalty of
$300.00. Each day or part thereof which violation occurs or continues shall
constitute a separate offense. As an alternative to criminal prosecution or civil
action, the non-criminal disposition procedure set forth in Massachusetts General
laws Chapter 40, Subsection 21D, Sections 1-2, 1-3,1-4,1-5, and 1-6 of the Code
of the Town of Nantucket may be used with a penalty of $300.00 for each
violation, each day ort part thereof during which such violation occurs or
continuers constitutes a separate offense.
SECTION 7. SEVERABILITY CLAUSE
Should any section, part or provision of these Regulations 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
These Regulations are 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. Amendment of these Regulations shall be based on
scientific information and may be initiated only by a similarly broad group. Such changes
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may go into effect only after scientific review by knowledgeable soil scientists and
passage by a super-majority of the Board of Health.
SECTION 9. EFFECTIVE DATE
These Regulations shall take effect on January 1, 2012.
[Printed: 2010-11-30]
A 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
2
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: 2010-11-30]
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