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Intro. Res. No. 2117-2007 Laid on Table 11/7/2007 Introduced by Presiding Officer, on request of the County Executive and Legislators Losquadro, Romaine, Horsley, D’Amaro and Stern
RESOLUTION NO. 1369 -2007, ADOPTING LOCAL LAW NO. 41 -2007, A LOCAL LAW TO REDUCE NITROGEN POLLUTION BY REDUCING USE OF FERTILIZER IN SUFFOLK COUNTY
WHEREAS, there was duly presented and introduced to this County Legislature at a meeting held on November 7, 2007, a proposed local law entitled, "A LOCAL LAW TO REDUCE NITROGEN POLLUTION BY REDUCING USE OF FERTILIZER IN SUFFOLK COUNTY” and said local law in final form is the same as the amended copy filed with the Clerk of this Legislature on December 3, 2007 and presented to this Legislature on December 3, 2007; now, therefore be it
RESOLVED, that said local law be enacted as follows:
LOCAL LAW NO. 41 -2007, SUFFOLK COUNTY, NEW YORK
A LOCAL LAW TO REDUCE NITROGEN POLLUTION BY REDUCING USE OF FERTILIZER IN SUFFOLK COUNTY
BE IT ENACTED BY THE COUNTY LEGISLATURE OF THE COUNTY OF SUFFOLK, as follows:
Section 1. Legislative Intent.
This Legislature hereby finds that overapplication and/or misuse of fertilizer products has led to the degradation in the local water quality, and has harmed groundwater, drinking water, and wetlands and surface waters within the County of Suffolk.
This Legislature further finds that excess nitrogen in drinking water can threaten human health, as fertilizer leachate has contaminated groundwater and groundwater is the sole source of drinking water on Long Island.
This Legislature also finds that nitrogen contamination trends in groundwater are worsening, in that 17% of Upper Glacial public water supply wells in the Upper Glacial Aquifer now exceed 6 milligrams/liter (mg/l) nitrogen (degraded), an increase from 9% in 1987.
This Legislature further finds that in 2006, 15 community public water supply wells, and nearly 10% of private wells in Suffolk County were found to violate the 10 mg/L Maximum Contaminant Level (MCL) set for nitrates to ensure safe drinking water.
This Legislature further finds that various factors may cause excess leaching of fertilizer nitrogen, including use of quick-release fertilizer, percentage of nitrogen in fertilizer, labeling which results in excess application rates of fertilizer, organic/inorganic/polymer formulations, soil types, lawn type and condition, timing of application, and total nitrogen applied per year.
This Legislature further finds that fertilizers are responsible for approximately 50% of the total nitrogen loads to groundwater in the Peconic Estuary and throughout medium-density residential land uses in Suffolk County.
This Legislature further finds that groundwater is, by far, the largest local source of nitrogen to estuaries, and nitrogen loadings to the Peconic Estuary have increased by more than 200% since the 1950s, due to fertilizers and sanitary systems.
This Legislature also determines that excess nitrogen inputs result in depressed dissolved oxygen (hypoxia), harming aquatic life, causing excessive algal blooms, and diminishing water clarity to further impair habitat for aquatic plants.
This Legislature further finds that numerous Suffolk County waterbodies have been added to New York State’s list of impaired waterbodies due to nitrogen over-enrichment, including the sensitive, westernmost areas of the Peconic Estuary, and eelgrass, a critical habitat, has substantially disappeared west of Shelter Island in the Peconics.
This Legislature further finds that more than half of Long Island Sound suffers from hypoxia every summer, that several areas of the South Shore Estuary Reserve are also seeing effects of eutrophication, and that several fish kills have been reported throughout Suffolk County due to low dissolved oxygen.
This Legislature further finds that fertilizer should not be applied to turf when ground is likely to be frozen, or when grass is not actively growing, so that fertilizer use on turf should be banned in cold-weather months, and public education and outreach should be utilized to prevent application during periods of summer dormancy.
This Legislature also determines that the Homestead A-Syst Task Force (Suffolk County Resolution No. 544-2006) sought to address this problem by establishing public education programs and holding public hearings, and that various other educational programs exist through agencies and estuary programs, but these efforts can be coordinated, refined, and expanded.
This Legislature further finds that current information regarding the use of fertilizers is confusing to consumers, and leads to the misapplication of fertilizer and contamination of groundwater, drinking water, and estuaries.
This Legislature also determines that the quality of our water should be considered a higher priority than the aesthetics of lawns, and that high maintenance lawns require more nitrogen and are more likely to leach excess nitrogen, so that high maintenance lawns should be discouraged.
This Legislature also determines that Suffolk County has already begun implementing programs to reduce nitrogen pollution, and those programs should continue to be refined and formalized as County policy, to serve as a model for residences, the private sector, and other levels of government.
This Legislature also determines that, based on the Peconic Estuary Program Comprehensive Conservation and Management Plan a goal of 10% to 25% fertilizer reduction is a reasonable initial target for existing residential fertilizing programs.
Therefore, the purpose of this law is to cause a reduction in the amount of nitrogen released into the groundwater by eliminating the use of fertilizers where practicable on lawns and on County property, decreasing the overall use of fertilizer, and optimizing the use of fertilizers when they are applied.
Section 2. Definitions.
As used in this law, the following terms shall have the meanings indicated:
A.) “COMMISSIONER” shall mean the Commissioner of the Suffolk County Department of Environment and Energy.
B.) “DEPARTMENT” shall mean the Suffolk County Department of Environment and Energy.
C.) “ESTABLISHMENT” shall mean a store or person located within Suffolk County that sells or offers fertilizer for sale.
D.) “FERTILIZER” shall mean any organic or inorganic material of natural or synthetic origin which is added to soil, soil mixtures, or solution to supplement nutrients and is claimed to contain one or more essential plant nutrients. The term "fertilizer" does not include unmanipulated animal and vegetable manure and agricultural liming materials used to reduce soil acidity.
E.) “PERSON” shall mean any individual, firm, partnership, corporation, company, society, association, or any organized group of persons whether incorporated or not.
F.) “TURF” shall mean any area of earth principally vegetated by grass.
Section 3. Prohibitions.
A.) Fertilizer shall not be applied to County owned real property, except as authorized under Section 8 of this law.
B.) Fertilizer shall not be applied to any turf on any non-County owned real property any non-County owned real property by any person between November 1 and April 1 of every year, except as authorized by Section 8 of this law.
Section 4. Requirements.
A.) An establishment shall conspicuously post a sign and informational brochures on fertilizers and turf management, which shall be furnished by the Department, within ten (10) feet of the establishment’s fertilizer display area. If an establishment has more than one fertilizer display area, and the display areas are not substantially contiguous, then signs and brochures must be displayed within ten (10) feet of each display area.
B.) The Department shall prepare a report, no later than July 1 of each year, which presents information on fertilizers sold in the preceding year. This report will be based on records available from the New York State Department of Agriculture and Markets. If the Commissioner deems that additional information is needed, the Commissioner is authorized to promulgate rules and regulations necessary to implement a Suffolk County reporting system on fertilizer sales for establishments.
Section 5. Education and Reporting.
A.) The Department shall work in conjunction with other persons and organizations to expand educational programs already in place regarding the risks of fertilizers for retailers, consumers and landscapers. These organizations include, but are not limited to:
i.) Cornell Cooperative Extension (CCE); ii.) Grassroots Healthy Lawn Program (GHLP); iii.) Neighborhood Network; iv.) Homestead A-Syst Task Force, as created by Suffolk County Resolution No. 544-2006; v.) United States Environmental Protection Agency (USEPA); vi.) Nassau Suffolk Landscape Gardeners Association (NSLGA); vii.) Long Island Sound Study; viii.) South Shore Estuary Reserve; ix.) Peconic Estuary Program x.) Turfgrass Science Program, Cornell University xi.) Cornell University New York State Integrated Pest Management (NYSIPM) Program xii.) Suffolk County Water Authority (SCWA) xiii.) Such other organizations as deemed appropriate by the Commissioner of the Department.
B.) The Department, in consultation with the Suffolk County Department of Health Services, shall develop, within one year of the effective date of this law, information regarding the risks of fertilizer related to turf and suggested guidelines to delineate which types of fertilizers, fertilizer application methods and best management practices support healthy vegetation, while posing the least harm to the environment. Best management practices may include such practices as low-maintenance lawns and landscaping, proper mowing, and modification of fertilizer application rates or times. In developing the guidelines, the Department shall consider factors which may contribute to excessive and unnecessary degradation of local water quality by nitrogen pollution, including harm to groundwater, drinking water, wetlands and surface waters. Factors considered shall include, but not be limited to:
i.) Nitrogen content and formulation of fertilizers; ii.) Rate of nitrogen release and leaching potential; iii.) Soil type, soil conditions, land use, lawn age, and lawn condition; iv.) Weather or temperature conditions; v.) Impact on aquatic organisms and vegetation; vi.) Definitions of fertilizer label terminology; vii.) Information about proper application techniques, including, but not limited to, timing, total nitrogen per application and total cumulative nitrogen applied per year; viii.) Impact on sensitive groundwater and surface water; and ix.) Such other factors as deemed appropriate by the Suffolk County Department of Environment and Energy.
C.) The Department shall establish, within one year of the effective date of this law, an interactive website concerning turf and fertilizer-related issues. The website shall present educational materials on fertilizers and County law and policy, including advisory signage and brochures, the prohibition on usage of fertilizers on turf from November 1 to April 1, landscaper training, and the guidelines developed pursuant to section 5(B). The website may also include a simple computer-based method of determining the amount of fertilizer required for a specific site. Links to other related educational resources shall also be provided.
Section 6. Annual Report and Program Evaluation Reports.
A.) The Department shall prepare an annual report summarizing information received pursuant to Section 4 of this law and the report shall show, at a minimum, the total quantities of fertilizer sold in Suffolk County. The report shall also analyze this data with respect to factors deemed to be significant by the Department, which may include, but not be limited to, nitrogen and phosphorus content of fertilizers, slow-release vs. quick-release fertilizers, and organic content of fertilizers. This report shall be completed no later than July 1 of the given year, shall be filed with the Clerk of the Legislature within 15 days of completion, and shall be made available to the public.
B.) The Department shall also prepare a report, every five years, beginning in 2014, which evaluates the effectiveness of this law, in terms of fertilizer sales information, environmental impact data, and any other information the Commissioner deems necessary. This report shall be completed no later than September 30 of the given year, shall be filed with the Clerk of the Legislature within 15 days of completion, and shall be made available to the public.
Section 7. Signs and Brochures.
The Department, in consultation with the Suffolk County Department of Health Services, shall develop, within one year of the effective date of this law, the signs and brochures referred to in section 4(A). The signs and brochures shall be written in a clear and simple manner and shall contain the suggested guidelines referred to in Section 5(B).
Section 8. Exemptions.
A.) Section 3 of this law shall not apply to land used in farm operations, as defined in the N.Y. Agricultural and Markets Law Section 301.
B.) Section 3(A) of this law shall not apply to:
i.) Golf courses, provided, however, that only the minimum amount of slow-release and organic fertilizer shall be used that is needed to sustain healthy turf on golf courses, and that fertilizer application rates shall be limited to 3 lbs. of nitrogen/1000 sq. ft. per year, over the golf course as a whole, consistent with the Organic Maintenance Plan adopted via Suffolk County Resolution No. 608-1998.
ii) The Suffolk County Farm; provided, however, that the Suffolk County Farm shall be subject to a goal of nitrogen reduction. The Suffolk County Departments of Planning and Health Services, in consultation with the Department, shall establish strategies to achieve this goal. Recommendations made in the following document shall be considered in developing the strategies:
A Strategy to Develop and Implement the Suffolk County Agricultural Stewardship Program – A Report to the Agricultural Environmental Management Task Force for Nitrogen and Pesticides Load Reduction – Final Report (May 26, 2004).
iii) Athletic fields, provided, however, that the County department with jurisdiction of the fields shall develop and comply with an annual plan containing best management practices to reduce use of fertilizer and avoid fertilizer leachate. The plan shall be submitted to the Department for review and approval.
iv) Newly-seeded or planted landscapes and newly-seeded or newly-sodded areas.
C.) Any reporting requirement which is promulgated by Suffolk County pursuant to Section 4B shall not apply to an establishment selling less than one thousand (1000) pounds of fertilizer in total during the preceding calendar year.
Section 9. Waivers.
Upon written application to the Department by a person utilizing County-owned property, a waiver of the prohibition in Section 3(A) of this law may be granted upon such terms and conditions as deemed appropriate at the Commissioner’s sole discretion. The decision to grant a waiver shall be based upon the following factors:
A.) Whether the waiver application is in general conformity with this law;
B.) Whether the uses of groundwater, surface water and drinking water supplies will be impaired;
C.) Whether the application conforms to a comprehensive management plan and/or well accepted best management practices, and;
D.) Whether the proposed use can be modified so that the project will not require a waiver.
Section 10. Enforcement.
The Suffolk County Department of Health Services shall enforce the prohibitions and requirements of Section 3 and 4 of this law, in accordance with the enforcement procedures established by Suffolk County Sanitary Code Article II, §§ 760-202 through 760-220.
Section 11. Penalties.
A.) Any violation of Sections 3 and 4 this law shall be subject to a civil penalty, in an amount not to exceed $1,000.00 per violation.
B.) Each day of continued violation shall constitute a separate additional violation.
Section 12. Rules and Regulations.
The Department, in consultation with the Suffolk County Department of Health Services and Suffolk County Office of Consumer Affairs, shall issue and promulgate such rules, regulations and standards as deemed necessary and appropriate to carry out the provisions of this law.
Section 13. Amendment.
Section 345-17 of Article II of Chapter 345 of the Suffolk County Code is hereby amended as follows:
ARTICLE II Home Improvement Contractors
* * * *
§ 345-17. License required.
* * * *
F.) Every person applying under this Chapter for a license to engage in, or applying for the renewal of a license to engage in, home improvement contracting, as that term is used in this Chapter, and who applies any fertilizer in the operation of such home contracting business, shall take a turf management course approved by the Commissioner of the Department of Environment and Energy, pursuant to rules, regulations and standards to be promulgated by the Department of Environment and Energy.
[F] G.) * * * *
Section 14. Reverse Preemption.
This law shall be null and void on the day that Statewide or Federal legislation goes into effect, incorporating either the same or substantially similar provisions as are contained in this law, or in the event that a pertinent State or Federal administrative agency issues and promulgates regulations preempting such action by the County of Suffolk. The County Legislature may determine via mere resolution whether or not identical or substantially similar statewide legislation has been enacted for the purposes of triggering the provisions of this section.
Section 15. Applicability.
Sections 3, 4 and 13 of this law shall apply to all actions occurring on or after January 1, 2009.
Section 16. Severability.
If any clause, sentence, paragraph, subdivision, section, or part of this law or the application thereof to any person, individual, corporation, firm, partnership, entity, or circumstance shall be adjudged by any court of competent jurisdiction to be invalid or unconstitutional, such order or judgment shall not affect, impair, or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, subdivision, section, or part of this law, or in its application to the person, individual, corporation, firm, partnership, entity, or circumstance directly involved in the controversy in which such order or judgment shall be rendered.
Section 17. SEQRA Determination.
This Legislature, being the lead agency under the State Environmental Quality Review Act, N.Y. Envtl. Conserv. Law Art. 8 (“SEQRA”) and Chapter 279 of the Suffolk County Code, hereby determines that this local law constitutes a Type I action, pursuant to 6 N.Y.C.R.R. §617.4. This Legislature further finds and determines that implementation of this action will not have a significant impact on the environment for the following reasons:
1. The proposed action will not exceed any of the criteria in Section 617.7 of Title 6 NYCRR, which sets forth thresholds for determining significant effect on the environment, as demonstrated in the Environmental Assessment Form;
2. The proposal does not appear to significantly threaten any unique or highly valuable environmental or cultural resources as identified in or regulated by the Environmental Conservation Law of the State of New York or the Suffolk County Charter and Code; and
3. The action will have significant beneficial impacts by minimizing nitrogen leachate to groundwater and surface waters, which will minimize hazards to drinking water and human health, while alleviating cultural eutrophication stresses to surface waters.
In accordance with Section 279-5(C)(4) of the Suffolk County Code, the Suffolk County Council, on Environmental Quality is hereby directed to prepare and circulate any appropriate notices or determinations in accordance with this resolution.
Section 18. Effective Date.
This law shall take effect immediately upon filing in the Office of the Secretary of State.
[ ] Brackets denotes deletion of existing language ___ Underlining denotes addition of new language
DATED: December 18, 2007
APPROVED BY:
/s/ Steve Levy County Executive of Suffolk County
Date: January 16, 2008
After a public hearing duly held on January 15, 2008 Filed with the Secretary of State on January 31, 2008
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