Town and County of Nantucket: Article 68 Work Group

1. Town and County of Nantucket: Article 68 Work Group Control of Fertilizer Application by Regulation: Experiences from other jurisdictions. Research by Lee W. Saperstein, June 29, 2010

2. Other Fertilizer Regulations • This summary is provided to the Art. 68 WG to help us learn from the regulatory experiences of others. • HPIC, who drafted Art. 68, found many examples of fertilizer-application regulations in other States and Counties. • WG Members have supplied some more.

3. Other Fertilizer Regulations • A basic question is “why write regulations on a local level?” • One possible answer is that water-based commerce and recreation may be more important to some communities than to others. • Another is that nutrient contamination is only loosely controlled in the federal Clean Water Act, CWA, as amended.

4. Other Fertilizer Regulations • Nutrient contamination is excessive amounts of nominally beneficial substances (nitrates and phosphates) that cause over-growth of algae and water-born plants leading to eutrophication and faunal toxicity. • Sources of nutrients include NOx from the atmosphere, overflows from septic systems, farms, and excess fertilizer, which is our concern.

5. Other Fertilizer Regulations • Clean water is defined by use: drinking, swimming, irrigating, watering livestock, navigation, etc. National standards exist for threshold values of contaminant, NWQS. • States may identify the water quality of named bodies of water, hence their uses. • When communities found that traditional uses were jeopardized by degradation of water quality, they started to legislate.

6. Other Fertilizer Regulations • The Vacuum in the CWA is that nutrient contamination is defined by what it is not: Non-point Pollution. • Non-point pollution sources (NPS) are to be controlled by Best Management Practice plans, not by permit. • Point sources such as publicly owned water treatment plants require permits and must meet rigidly defined discharges.

7. Other Fertilizer Regulations • The Estuaries Project of MA extends the identification of water quality from streams, lakes, and ponds, to marine embayments and shore lands. • Nantucket Harbor and its other waters have been studied with conclusions reached about nutrient contamination: we are at a threshold.

8. Other Fertilizer Regulations • Total Maximum Daily Loads (TMDL) have been defined for Nantucket Harbor. • Septic systems have been reviewed and a system of surveillance devised. Guidance for this comes from the Clean Water Act and Mass DEP • Fertilizer is our brief and there is less guidance on how to proceed. That’s why we’re looking at other jurisdictions.

9. Other Fertilizer Regulations • We have found fertilizer application regulations from 2 States and 4 other localities. References are in the list of common documents with significant ones repeated here. • We are not including the much larger number of regulations on the manufacture and sale of fertilizer (The Fertilizer Institute: http://www.tfi.org/factsandstats/regulations.cfm).

10. Other Fertilizer Regulations • States • Minnesota. The Land of 10,000 Lakes has written State-wide regulation for the control of phosphates presumably because they cause eutrophication of lakes, http://www.mda.state.mn.us/phoslaw. • New Jersey. Clean Water, New Jersey, is a DEP advisory group: http://www.cleanwaternj.org/, together, they have proposed a model ordinance for New Jersey communities: http://www.state.nj.us/dep/watershedmgt/DOCS/TMDL/Fertilizer%20Application%20Model%20Ordinance.pdf.

11. Other Fertilizer Regulations • States, New Jersey • The model ordinance is not a state-wide law but a well-thought out template for communities to adopt for themselves. • We will post a copy for subcommittees to review.

12. Other Fertilizer Regulations • Local Jurisdictions • Dane County, WI. Home of Madison and its famous lakes; concern is for fresh-water eutrophication from phosphates. • City of Sanibel Island, FL. Sandy soils and extensive turf cultivation; extensive estuaries and embayments. A good model: http://sanibelh2omatters.com/fertilizer/.

13. Other Fertilizer Regulations • Local, continued • Sanibel, continued. An excellent web site explains the problem and their approach. They have a sophisticated system of education and certification. • Suffolk County, NY. The entire eastern end of Long Island; a glacial moraine similar to Nantucket with high-value real estate, enviable beaches, and a traditional farming community.

14. Other Fertilizer Regulations • Suffolk, continued. Their web site is also good: http://www.suffolkcountyny.gov/Home/departments/EnvironmentandEnergy/FRI.aspx. The Suffolk personnel who drafted the Fertilizer Reduction Initiative, FRI, relied on the work and advice of Cornell agriculture scientists. • Westchester County, NY, has a sophisticated fertilizer regulatory scheme primarily for the control of phosphates.

15. Other Fertilizer Regulations • Lessons for the Work Group • HPIC has done its home work and working from their draft saves us time and effort. • There are elements not in the draft that should still be considered. • While we are not alone in the US, we appear to be the first in MA to consider regulatory control of fertilizer application.

16. Other Fertilizer Regulations • Observed Code Elements • Fertilizer should be • Mainly slow-release nitrogen (50% in FL and 70% elsewhere); • Zero % phosphate except when need demonstrated by soil test or when establishing new plantings; • Similar constraints apply to combination products; • No mention of foliar fertilizers. • Little discussion of synthetics vs organics

17. Other Fertilizer Regulations • Observed Code • Application • Fertilizer should be applied when plants are growing; i.e. avoid periods of dormancy. In FL, this means no application in the summer months. • Amounts should be limited by plant need (soil test) or some small number (one or two) of pounds per 1000 sq. ft. per season.

18. Other Fertilizer Regulations • Application, continued. • Avoid application before storm events that will lead to run-off or, in the case of sandy soils, rapid percolation below the root zone and into the groundwater system. • Do not apply within 25 feet of bodies of water; wetlands not mentioned. • Do not apply to impervious surfaces, i.e. clean up spills. • Do not allow to go into storm drains.

19. Other Fertilizer Regulations • Observed Code Elements • Commercial (landscapers) and Institutional (government, golf courses, etc.) applicators (italics used in regs) • May need to be licensed or certified. The latter word is used when the license is granted only after demonstration of knowledge, typically through a test; • All should be competent or qualified, either by education or experience. • License may be separate or as part of a broader one for businesses or landscapers.

20. Other Fertilizer Regulations • Observed Code Elements • Retailers • Must display appropriate signs on acceptable products; educational brochures distributed to fertilizer customers. • May be required to be licensed; • Should make zero-percent phosphate widely available. • Education • Web site available; brochures and signs and FAQs correspond in text.

21. Other Fertilizer Regulations • Observed Code Elements • Education, continued • Courses on application practice made available to the public; on-line or face-to-face; fee charged. • Courses mandated for licensure. • Exemptions • All farms are exempted but their impacts may be covered by agricultural regs. • Some codes exempted government and institutional applicators

22. Other Fertilizer Regulations • Observed Code Elements • Enforcement and Penalties • No great emphasis on this element. • One code suggested civil penalties of up to $500 per infraction; it did not indicate how infractions would be observed. • Monitoring did not appear to be discussed. • Reporting • At least one code asked that public reports on water quality be filed in the future.

23. Other Fertilizer Regulations • A word of warning – Caveat • These summary notes are a beginning not an end. • Those of us who write drafts for the Nantucket code should go back to the original web sites for guidance on what they said and did. • Lee has been known to leave things out or get them horribly wrong!