[HISTORY: Adopted by the Town of Barnstable 11-20-2014 by Order No.
2015-032. Amendments noted where applicable.]
A.
Excessive nutrient enrichment of the region's groundwaters and
surface waters may have significant public health ramifications, including
direct detrimental effects on drinking water sources by increased
concentrations of nitrates that can violate safe drinking water standards,
and have negative impacts on economic, environmental and recreational
resources and values in the Town and region.
B.
The Town has significant glacially deposited sandy soils that are
subject to rapid water infiltration, percolation, and leaching of
nutrients.
C.
This chapter incorporates by reference the University of Massachusetts
Extension's Turf Management Best Management Practices. These
practices, if followed, are deemed to protect the public health, safety
and welfare and aid in achieving compliance with the total maximum
daily loads (TMDL) for the Town's water resources prescribed
by the Commonwealth of Massachusetts while allowing reasonable use
of fertilizers for the enhancement and maintenance of turf quality.
A.
This chapter provides for a reduction of nitrogen and phosphorus
entering the Town's waters and wetlands by means of an organized
system of education, certification, standardization and regulation
of practice. This chapter is not intended to eliminate the use of
fertilizer.
B.
This chapter adopts the best management practices as the normal operating
procedures for turf management but not plants other than turf.
This chapter is adopted as implementing regulations pursuant
to and as authorized by 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.
The Town and all of its waters.
A sequence of activities designed to limit a nonpoint pollution source. For the purposes of this chapter and pursuant to § 78-5A of this chapter, "BMP" means the edition of Best Management Practices for Soil and Nutrient Management in Turf Systems, prepared by the University of Massachusetts Extension, Center for Agriculture, Turf Program in effect on September 18, 2014.
An applicator certified in the manner prescribed hereunder
to apply fertilizer and manage turf in conformance with the BMP.
Sometimes known as "weed and feed," means any product that,
in combination with fertilizer, contains pre- or post-emergence herbicides,
insecticides, other pesticides or plant growth regulators.
The biologically stable humus-like material derived from
composting, or the aerobic, thermophilic decomposition of organic
matter, which is used as a fertility source for 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,
or compost/compost tea. "Fertilize, fertilizing, or fertilization"
means the act of applying fertilizer to turf.
Any person who applies fertilizer to turf and soils.
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.
A person, either as a sole proprietor or as part of a company,
who, in exchange for money, goods, services, or other consideration,
performs landscaping services. A landscape professional can include
turf management staff at a private golf course operation or other
private entity.
For purposes of this chapter, establishment (including by
sod, seeding, or transplanting), renovation, maintenance, management
or fertilization of turf.
A public employee of a city, town, the county, or the state
or federal government (or an employee of a department of and within
such public entity) who fertilizes and manages turf located on property
owned or controlled by a town, the county, the state or federal government
(including publicly owned golf courses and athletic fields) within
the scope of their official public employment responsibilities.
An applicator who is not certified in the manner prescribed
hereunder to manage turf and apply fertilizer in conformance with
the BMP.
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.
The systematic control of the application and availability
of nutrients to plants in order to minimize nutrient loss and to maintain
the productivity of the soil.
Any water-soluble nitrogen (WSN) that is readily available
to turf after application.
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 in agreement with
the University of Massachusetts Amherst Extension Program BMP, 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."
Includes, 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 Massachusetts General Laws,
Chapter 131, Section 40, and the Town Wetland Ordinance or Regulations,
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.
A.
Best management practices. The best management practices (BMP), as
defined herein, shall be applied to the standards of performance.
B.
Performance standards for noncertified fertilizer applicators. Fertilizer applicators who do not hold fertilizer certification issued in accordance with § 78-6B of this chapter shall comply with the following standards for fertilizer applications to turf:
(1)
Noncertified fertilizer applicators shall not apply fertilizer during
or immediately prior to 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)
Noncertified fertilizer applicators shall not apply fertilizer or
compost between November 12 and the following March 31;
(3)
Noncertified 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;
(4)
Unless the Town's existing laws and regulations, including its Wetland Ordinance or Regulations, contain a stricter standard or other enforcement or approval mechanism such as through the Town's Conservation Commission, which shall control, noncertified fertilizer applicators shall not apply fertilizer closer than 100 feet to any water body, or within the Zone I of a public drinking water well unless permission is obtained through the enforcement authority set out in § 78-6D(1) herein allowing such activity;
(5)
A noncertified fertilizer applicator shall not apply fertilizer that
contains phosphorus, unless a soil test taken not more than three
years before the proposed fertilizer application indicates that additional
phosphorus is needed for growth of that turf, or unless establishing
new turf or reestablishing or repairing turf after substantial damage
or land disturbance, in which case the application shall be in compliance
with the BMP;
(6)
A single application of fertilizer that contains nitrogen shall not
exceed 1.0 pounds of actual nitrogen per thousand square feet, shall
consist of at least 20% slow-release nitrogen fertilizer (NOTE: This
represents the minimum percentage: use of higher SRN content is generally
preferable, especially on sandy root zones, during stress and pre-stress
periods, and when there are fewer annual applications of nitrogen
made to a lawn.) and the annual rate shall not exceed 3.2 pounds of
actual nitrogen per thousand square feet. Single applications shall
be done at intervals of no less than four weeks until the annual maximum
is reached;
(7)
The fertilizer application requirements of this § 78-5B shall apply with the same limitations to combination products, i.e., amount of nitrogen applied, vicinity of water bodies, etc;
(8)
Noncertified fertilizer applicators shall not deposit grass clippings,
leaves, or any other vegetative debris into or within 50 feet of water
bodies, retention and detention areas, drainage ditches or stormwater
drains, or onto impervious surfaces, such as, but not limited to,
roadways and sidewalks, except during scheduled clean-up programs.
C.
Performance standards for certified fertilizer applicators. Certified fertilizer applicators shall be exempt from the requirements set forth in § 78-5B of this chapter, provided that they shall manage turf and apply fertilizer to turf in accordance with the BMP. The burden shall be on the certified fertilizer applicator, if and as required, to show that he/she is applying fertilizer in accordance with the BMP.
D.
Exemptions. The following activities shall be exempt from this chapter:
A.
Fertilizer/turf management education. Fertilizer education may consist
of, but is not limited to, collaboration with retailers to post in-store
information on Town fertilizer regulations, the BMP and fertilizer
certification requirements; mailings and flyers for the general public
concerning Town fertilizer regulations, the BMP and fertilizer certification
requirements; and outreach to landscape professionals and municipal
applicators concerning fertilizer-related laws, the BMP and fertilizer
certification requirements. The Town may rely on Cape Cod Cooperative
Extension to assist in maintaining a program of fertilizer and turf
management education that is based on the BMP.
B.
Fertilizer certification.
(1)
The Town may seek the assistance of the Cape Cod Cooperative Extension
to establish application requirements for and the process required
to obtain fertilizer certification and renewals thereof, including
evidence that the applicant is proficient in the BMP. Any noncertified
fertilizer applicator may then apply to the Town or Cape Cod Cooperative
Extension, as the case may be, for fertilizer certification as a certified
fertilizer applicator.
(2)
Notwithstanding the requirement for a proficiency assessment set out in § 78-6B(1) above, municipal applicators or landscape professionals who meet the following criteria shall be presumed to be proficient in the BMP and may become certified fertilizer applicators without the need for an additional proficiency assessment or fees:
(a)
Current Massachusetts pesticide commercial applicator license
(Category 00) or commercial applicator license with turf certification
(Category 37) or commercial applicator license with shade tree and
ornamentals certification (Category 36), with evidence of participation
in a recognized continuing education program for turf management within
the past year; or
(b)
Active membership in the Cape Cod Landscapers Association, the
Golf Course Superintendents Association of Cape Cod, Massachusetts
Association of Lawn Care Professionals (MALCP) or a substantially
similar organization and any one of the following:
[1]
Associate's Degree or higher in turf management, or closely
related field, with evidence of participation in a recognized continuing
education program for turf management within the past year;
[2]
Current Massachusetts Certified Landscape Professional (MCLP)
certification or current Massachusetts Certified Arborist (MCA) certification,
or substantially similar professional certification with emphasis
on turf management, with evidence of participation in a recognized
continuing education program for turf management within the past year;
[3]
Certificate of Completion from the University of Massachusetts
Extension Green School (Turf or Landscape sections) or the University
of Massachusetts Winter School for Turf Managers, or a horticultural
certificate from Cape Cod Community College, or substantially similar
professional certification with emphasis on turf management, with
evidence of participation in a recognized continuing education program
for turf management within the past year.
(3)
The Town may seek the assistance of the Cape Cod Cooperative Extension
to help develop or administer an assessment to determine an applicator's
proficiency in the BMP and to assist with or administer a fertilizer
certification process, which if administered by the Extension, may
be a county-wide process.
(4)
Municipal applicators or landscape professionals who are noncertified fertilizer applicators may nonetheless apply fertilizer and manage turf pursuant to the standards for certified fertilizer applicators set out in § 78-5C of this chapter so long as they fertilize and manage turf under the direct supervision of a manager or supervisor who has attained fertilizer certification hereunder. "Direct supervision" shall mean the instruction and control by such manager or supervisor who is responsible for fertilizer applications made and that person making them, and who is either physically present at the time and place the fertilizer is applied, or if not physically present, is available if and when needed.
(5)
All certified fertilizer applicators shall ensure that a copy of the official documentation of said fertilizer certification is readily available when and at the location fertilizer is being applied, and shall provide such certification when requested to do so by an officer or agent of the enforcement authority set out in § 78-6D(1) herein.
(6)
All certified fertilizer applicators who apply plant nutrients shall
maintain records for three years of each application made. The following
information shall be recorded, when applicable:
(a)
Name of applicator;
(b)
Date of application;
(c)
Address or location description of the application site;
(d)
Type and amount of nutrients applied;
(e)
Size of the area being treated;
(f)
Representative nutrient value or values (e.g., soil tests);
(g)
Plant nutrient analysis of product used;
(h)
Method and rate of application;
(i)
Total amount used;
(j)
An original or legible copy of the label of the plant nutrient;
and
(k)
The implementation of all activities or protocols recommended
or required by the nutrient management plan, if applicable.
C.
Retailer requirements. Any retailer who sells, or offers for sale,
phosphorus-containing fertilizer shall:
(1)
Display the product separately from nonphosphorus plant nutrients;
(2)
Post in a location where phosphorus-containing fertilizer is displayed a clearly visible sign, provided by the Town, at least 8 1/2 inches by 11 inches in dimension, which reads as follows: "PHOSPHORUS RUNOFF POSES A THREAT TO WATER QUALITY. THEREFORE, UNDER GL Ch. 128 sec. 65A, PHOSPHORUS CONTAINING FERTILIZER MAY ONLY BE APPLIED TO LAWN OR NON-AGRICULTURAL TURF WHEN (i) a soil test indicates that additional phosphorus is needed for the growth of that lawn or non-agricultural turf; or (ii) it is used for newly established lawn or non-agricultural turf during the first growing season."
(3)
Post education materials on proper soil testing and use of fertilizers
in a prominent location where fertilizer is being sold.
D.
Enforcement.
(2)
For first and second offense within a twelve-month period. After
the first year from the effective date of this chapter, whoever violates
any provision of this chapter by committing a first or second offense
may be penalized as follows:
(3)
Noncriminal disposition. After the first year from the effective
date of this chapter, whoever violates any provision of this chapter
three or more times in a twelve-month period may be penalized by a
noncriminal disposition process as provided in MGL c. 40, § 21D
and the Town's noncriminal disposition ordinance. If noncriminal
disposition is elected, then any person who violates any provision
of this chapter shall be subject to a penalty of not more than $300
for each violation.
(4)
Other remedies. The Town's Board of Health, through its Director of Public Health, or the Town's Conservation Commission for violations of § 78-5B(4) and (8) may enforce this chapter or enjoin violations thereof through any lawful process, and the election of one remedy by the Town's Director of Public Health and the Conservation Commission shall not preclude enforcement through any other lawful means.
Should any section, part or provision of this chapter be deemed
invalid by a court of competent jurisdiction, such decision shall
not affect the validity of the remaining terms of this chapter as
a whole or any part thereof, other than the section, part or provision
held invalid, which shall remain in full force and effect.
A.
No amendment to this chapter shall be adopted until such time as
the Town Council 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.
No such amendment shall be effective unless the proposed amendment
has been approved by the Town Council.
B.
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.
The effective date of this chapter shall be the date the fertilizer certification process outlined in § 78-6B herein is implemented and in effect.
