[HISTORY: Adopted by the Board of Health
of the Town of Eastham 3-5-2020. Amendments noted where applicable.]
A.Â
Mounting evidence supports the claim that excessive nutrient enrichment
of the region's groundwaters and surface waters may have significant
public health impact. Direct effects on drinking water sources are
well known and include the increased concentrations of nitrogen to
levels that can violate the Safe Drinking Water Standards. The indirect
public health effects through surface water enrichment from nitrogen
and phosphorus can be equally unhealthy, and may lead to environmental
and ecological alterations, resulting in toxic algae blooms and the
proliferation of human and animal disease organisms including bacterial,
fungal, myxozoa and insect vector pathogens.
B.Â
The Board of Health has determined that excessive, inappropriate
or improper use of fertilizers is part of the overall problem of nutrient
enrichment, and therefore promulgates the following regulation, regarding
the use of fertilizer on turf. This chapter incorporates current best
management practices which are deemed essential in this effort to
protect the public health and aid in achieving compliance with the
total daily maximum loads (TMDL) for the Town's water resources
prescribed by the Commonwealth of Massachusetts while allowing reasonable
use of fertilizers for the enhancement of turf quality.
A.Â
It is, therefore, desirable to control by regulation and education,
in the Town of Eastham, the use of fertilizer that contains phosphorus
and nitrogen for the purposes set out herein.
B.Â
This chapter is not intended to eliminate the use of fertilizer but
only to eliminate excess amounts of phosphorus and nitrogen from reaching
our water bodies and groundwater. This chapter adopts the best management
practices as the required operating procedures for turf management
throughout the Town.
C.Â
This chapter shall apply to turf management practices only.
This chapter is adopted by the Town of Eastham's Board
of Health as authorized by MGL c. 111, § 31, and is further
authorized as implementing regulations pursuant to the Fertilizer
Management District of Critical Planning Concern designation, Barnstable
County Ordinance 13-07, and by Section 9 of Chapter 262 of the Acts
of 2012.
For the purposes of this chapter, the following words shall
have the following meanings unless the context clearly indicates a
different meaning:
Farming in all of its branches including the cultivation
and tillage of the soil, the production, cultivation, growing, and
harvesting of any agricultural, floricultural or horticultural commodities,
including but not limited to cranberries.
A sequence of activities designed to limit a nonpoint pollution
source as conforming to the most current edition of "Best Management
Practices for Soil and Nutrient Management in Turf Systems," prepared
by University of Massachusetts Extension, Center for Agriculture,
Turf Program.
The biologically stable humus-like material derived from
composting, or the aerobic, thermophilic decomposition of, organic
matter, which is applied as a fertility source (also referred to as
enhancement or conditioning) for turf.
The Town and all of its waters.
The act of applying fertilizer to turf.
A substance that enriches turf with elements essential for
plant growth, such as nitrogen, phosphorus, or other substances; "fertilizer"
hereunder does not include dolomite, limestone, or lime, grass clippings,
compost or compost tea.
Any person who applies fertilizer to turf and soils.
Water found in cracks, fissures and pore spaces in the saturated
zone below the ground surface, including but not limited to perched
groundwater.
A surface that has been compacted or covered with a layer
of material so that it is highly resistant to infiltration by water,
except for compacted areas on athletic fields such as clay or baseball
infields, intensely trafficked turf and the like.
For purposes of this chapter, establishment (including by
sod, seeding, or transplanting), renovation, maintenance, management
or fertilization of turf.
Any of the following 17 elements needed for growth of a plant;
the three nonmineral elements: carbon, hydrogen, and oxygen; the six
macronutrients: nitrogen, phosphorus, potassium, calcium, magnesium,
and sulfur; and the eight micronutrients: boron, copper, iron, chloride,
manganese, molybdenum, nickel and zinc.
Nitrogen in a form that delays its availability for uptake
and use after application, and is not rapidly available to turf.
The uppermost layer of the earth's surface, comprised
of mineral and organic matter, which can host biological communities.
A technical analysis of soil conducted by a soil testing
laboratory that uses standards recommended by and compliant with the
University of Massachusetts Amherst Extension Program BMPs, including
a Modified Morgan soil testing procedure and extractable nutrient
values.
Grass-covered soil held together by the roots of the grass,
also known as "sod" or "lawn."
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, including without limitation all waters defined in MGL c.
131, § 40 and Town Wetland bylaw or regulation 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 100-year
storm line.
B.Â
Performance standards for fertilizer application.
(1)Â
Fertilizer shall not be applied during or immediately prior to predicted
heavy rainfall, such as but not limited to thunderstorms, hurricanes,
or northeastern storms, or when the soil is saturated due to intense
or extended rainfall;
(2)Â
Neither fertilizer nor compost shall be applied between November
12 and the following April 14;
(3)Â
Fertilizer applicators shall not apply, spill, or deposit fertilizer
on any impervious surface and fail to remove the applied, spilled,
or deposited fertilizer immediately (and in which case the applicator
shall then either contain, dispose of legally or apply the fertilizer
as allowed), and shall not apply, spill or deposit fertilizer in a
manner that allows fertilizer to enter into storm drains or waterbodies
or nearby properties;
(4)Â
Unless the Town's Bylaws, including its Wetland Bylaw or regulations,
contain a stricter standard, or other enforcement or approval mechanism
such as through the Town's Conservation Commission, which shall
control, fertilizer shall not be applied closer than 100 feet to any
waterbody, or within the zone of contribution to a public drinking
well unless permission is obtained through the enforcement authority
set out herein allowing such activity.
(5)Â
Fertilizer that contains phosphorus shall not be applied unless a
soil test taken not more than 36 months before the proposed fertilizer
application indicates that additional phosphorus is needed for growth
of that turf, or unless establishing new turf or re-establishing or
repairing turf after substantial damage or land disturbance, in which
case the application shall be in compliance with the BMP.
(6)Â
A single application of fertilizer that contains nitrogen shall not
exceed 1.0 pound of actual nitrogen per thousand square feet, shall
consist of at least 20% slow-release nitrogen fertilizer and the annual
rate per twelve-month period shall not exceed 3.2 pounds of actual
nitrogen per 1,000 square feet. Single applications may be done at
intervals of no less than four weeks until the annual maximum is reached.
(7)Â
The fertilizer application requirements of this section shall apply
with the same limitations to combination products, i.e., amount of
nitrogen and phosphorus.
C.Â
Exemptions. The following activities shall be exempt from this chapter:
A.Â
The Town may rely on the Cape Cod Cooperative Extension to assist
in maintaining a program of fertilizer education that is based on
the BMP.
B.Â
Fertilizer education may consist of, but is not limited to, collaboration
with retailers to post in-store information on Town fertilizer regulations;
mailings and flyers for the general public concerning Town fertilizer
regulations, and other public educational efforts the BOH, from time
to time, deems appropriate.
A.Â
Enforcement and penalties: The Board of Health, through the Health
Agent, Assistant Health Agent, or other enforcing officer or official
designated by Board of Health, may enforce this chapter and address
violations thereof through any lawful process:
B.Â
Variance/appeals.
(1)Â
Variance. A request for variance to any part of this chapter may
be made directly to the Board of Health. A variance may be granted
when in the opinion of the Board of Health the public and environmental
health will not be compromised. The applicant must provide a written
request to appear at a Board of Health Meeting and provide an opportunity
to provide information on why a variance should be granted that would
provide equal protection to public health and the environment.
(2)Â
Appeal. Under MGL c. 111, § 31, any person or persons aggrieved
by a Board of Health order may request a hearing before the Board
of Health by filing a written request within seven days of receiving
the order. At the hearing the petitioner will have an opportunity
to be heard and to show why an order should be modified or reconsidered.
Any person aggrieved by final order of the Board of Health may seek
relief therefrom within 30 days in Barnstable Superior Court, as provided
by the laws of the commonwealth.
A.Â
Under MGL c. 111, § 31, no amendment to this chapter 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 14 days prior to
the date set for such hearing.
B.Â
No such amendment shall be effective unless the proposed amendment
has been reviewed and approved by the Board of Health.
C.Â
Amendments shall also be subject to the procedures set out in Sections
10 and 11 of the Cape Cod Commission Act, Chapter 716 of the Acts
of 1989, as amended. Specifically, amendments must also be consistent
with the Fertilizer Management District of Critical Planning Concern
designation, Barnstable County Ordinance 13-07 and the Guidelines
for Implementing Regulations set out therein, including the requirement
for consistency with the BMP.
If any provision of this regulation is declared invalid by a
court of competent jurisdiction, such invalidity shall not affect
any remaining provisions of this regulation. Any part of these regulations
subsequently invalidated by a new state law or modification of an
existing state law shall automatically be brought into conformity
with the new or amended law and shall be deemed to be effective immediately.
