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HomeMy Public PortalAboutORD 11/07INTER - OFFICE MEMORANDUM TOWN OF GULF STREAM, FLORIDA OFFICE OF THE TOWN CLERK Rita L. Taylor TO: Municipal Code Corp. DATE: 2 -27 -12 RE: Ordinance No. 11/7 This Ordinance is to be codified in Chapter 38 relating to Waterways, as Article IV titled Protection of Waterways /Regulation of Application of Fertilizers. Page 1 of 1 Rita Taylor From: Randolph, John C. [JRandolph@jones- foster.com] Sent: Monday, February 27, 2012 4:30 PM To: Rita Taylor Subject: Fertilizer Ordinance Rita, In regard to the fertilizer ordinance, I think that it might fit under Chapter 38 relating to Waterways. Under Article III, relating to Watercraft, we regulate disposal of wastes. Perhaps we can have an Article IV titled "Protection of Waterways /Regulation of Fertilization." Or, if you don't think the word fertilization is appropriate, then Regulation of Application of Fertilizers. JOHN C. RANDOLPH John C. Randolph Attorney Direct: 561.650.0458 Fax: 561.650.5300 irandolph@ionesfoster.com Jones, Foster, Johnston & Stubbs, P.A. Flagler Center Tower 505 South Flagler Drive, Suite 1100, West Palm Beach, Florida 33401 Telephone: 561.659.3000 Website U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service. Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message. 2/29/2012 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 ORDINANCE NO. 11/7 AN ORDINANCE OF THE TOWN COMMISSION OF THE TOWN OF GULF STREAM, PALM BEACH COUNTY, FLORIDA, FOCUSING ON EXCESSIVE NUTRIENT LEVELS IN PALM BEACH COUNTY WATER BODIES; PROVIDING FOR TITLE; PROVIDING FOR DEFINITIONS; PROVIDING FOR FINDINGS; PROVIDING FOR PURPOSE AND INTENT; PROVIDING FOR APPLICABILITY; PROVIDING FOR TIMING OF FERTILIZER APPLICATIONS; PROVIDING FOR FERTILIZER FREE ZONES; PROVIDING FOR FERTILIZER CONTENT AND APPLICATION RATES; PROVIDING FOR FERTILIZER APPLICATION PRACTICES; PROVIDING FOR MANAGEMENT OF GRASS CLIPPINGS AND VEGETATIVE MATTER; PROVIDING FOR EXEMPTIONS; PROVIDING FOR TRAINING; PROVIDING FOR LICENSING OF COMMERCIAL APPLICATORS; PROVIDING FOR ENFORCEMENT; PROVIDING FOR PENALTIES; PROVIDING FOR APPEAL; PROVIDING FOR SEVERABILITY; PROVIDING FOR INCLUSION IN THE CODE OF LAWS AND ORDINANCES; PROVIDING FOR ENFORCEMENT; PROVIDING FOR CAPTIONS; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, pursuant to Section 303(d) of the federal Clean Water Act and the resulting Florida Impaired Waters Rule (Chapter 62 -303, Florida Administrative Code), the Florida Department of Environmental Protection (FDEP) has classified specific water bodies in Palm Beach County as "impaired" as a result of the presence of excessive nutrients; and WHEREAS, Florida Statute, Section 403.9337 requires local governments located within the watershed of a water body or water segment that is listed as impaired by nutrients pursuant to Florida Statute, Section 403.067, adopt an ordinance for Florida- FriendlyTM fertilizer use on urban landscapes; and WHEREAS, the FDEP on the 2nd day of March 2011, issued its Palm Beach County Municipal Separate Storm Sewer System Permit No. FLS 000018 -003 (hereinafter referred to as the "MS4 Permit ") to forty -one (41) governmental entities including the Town of Gulf Stream; and WHEREAS, the MS4 permit requires local governments within the watershed of a nutrient impaired water body to adopt FDEP's Model Ordinance for Florida Friendly Fertilizer Use on Urban Landscapes or an Ordinance that includes all the requirements set forth in the Model Ordinance; and WHEREAS, surface water runoff and base flow runoff leaves residential neighborhoods, commercial centers, industrial areas, and other lands of Palm Beach I County and enters into natural and artificial stormwater and drainage conveyances and 2 natural water bodies in Palm Beach County; and 3 WHEREAS, phosphorus and nitrogen, the primary nutrients associated with the 4 degradation of surface water, are commonly the primary components of fertilizer for turf 5 and landscape application; and 6 WHEREAS, the quality of streams, lakes, and wetlands is important to 7 environmental, economic, and recreational prosperity and to the health, safety, and 8 welfare of the residents of Palm Beach County; and 9 WHEREAS, algae blooms and accelerated growth of aquatic weeds in Palm 10 Beach County's water bodies have heightened community concerns about water quality 11 and eutrophication of surrounding waters; and 12 WHEREAS, it is generally recognized that Eastern Palm Beach County soils 13 naturally have adequate phosphorus content for most vegetative needs and that 14 additional phosphorus is therefore only occasionally needed to create or maintain a 15 vibrant landscape; and 16 WHEREAS, it has been recognized that proper application of slow - release 17 nitrogen sources is more efficiently used by plants and less likely to leach or runoff; and 18 WHEREAS, this Ordinance is part of a regulatory program to address nonpoint 19 sources of nutrient pollution which is scientifically based, and economically and 20 technically feasible; and 21 WHEREAS, in the process of adoption of this Ordinance, the Town Commission 22 of the Town of Gulf Stream has considered scientific information, including input from 23 the Department of Environmental Protection, the Department of Agriculture and 24 Consumer Services, and the University of Florida Institute of Food and Agricultural 25 Sciences. 26 NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COMMISSION OF THE 27 TOWN OF GULF STREAM, PALM BEACH COUNTY, FLORIDA, that: 28 SECTION I. TITLE 29 This Ordinance shall be known as the Fertilizer- Friendly Use Ordinance. 30 SECTION II. DEFINITIONS 31 For this Ordinance, the following terms shall have the meanings set forth in this 32 section unless the context clearly indicates otherwise. 2 1 1. 'Application" or "Apply" means the actual physical deposition of fertilizer to 2 turf or landscape plants. 3 2. "Applicator" means any person who applies fertilizer on turf and /or 4 landscape plants in the Town of Gulf Stream. 5 3. 'Approved Test" means a soil test from the University of Florida, 6 government, or other commercial licensed laboratory that regularly performs soil testing 7 and recommendations. 8 4. "Best Management Practices (BMP's)' means turf and landscape 9 practices or combination of practices based on research, field- testing, and expert 10 review, determined to be the most effective and practical site - specific means, including 11 economic and technological considerations, for improving water quality, conserving 12 water supplies and protecting natural resources. 13 5. "Code Enforcement Officer', "Official'; or "Inspector" means any 14 designated employee or agent of the Town of Gulf Stream whose duty it is to enforce 15 codes and ordinances enacted by the Town of Gulf Stream. 16 6. "Commercial Fertilizer Applicator" except as provided in section 17 482.1562(9), F.S., means any person who applies fertilizer for payment or other 18 consideration to property not owned by the person or firm applying the fertilizer or the 19 employer of the applicators. 20 7. "Fertilizing'; or "Fertilization" means the act of applying fertilizer to turf, 21 specialized turf, or landscape plants. 22 8. "Fertilizer" means any substance or mixture of substances that contains 23 one or more recognized plant nutrients and promotes plant growth, or controls soil 24 acidity or alkalinity, or provides other soil enrichment, or provides other corrective 25 measures to the soil. 26 9. "Institutional Applicator" means any person, other than a private, non - 27 commercial or a Commercial Applicator (unless such definitions also apply under the 28 circumstances), that applies fertilizer for the purpose of maintaining turf and /or 29 landscape plants. Institutional Applicators shall include, but shall not be limited to, 30 owners, managers, or employees of public lands, schools, parks, religious institutions, 31 utilities, industrial or business sites and any residential properties maintained in 32 condominium and /or common ownership. 3 1 10. "Landscape Plant" means any native or non - native tree, shrub, or 2 groundcover (excluding turf). 3 11. "Pasture" means land managed for livestock grazing. 4 12. "Person" means any natural person, business, corporation, limited liability 5 company, partnership, limited partnership, association, club, organization, and /or any 6 group of people acting as an organized entity. 7 13. "Prohibited Application Period" means the time period during which a 8 Flood Watch or Warning, a Tropical Storm Watch or Warning, or a Hurricane Watch or 9 Warning is in effect for any portion of the Town of Gulf Stream issued by the National 10 Weather Service, or if heavy rain (2 inches or more within a twenty -four (24) hour 11 period) is likely. 12 14. "Saturated Soil" means a soil in which the voids are filled with water. 13 Saturation does not require flow. For the purposes of this Ordinance, soils shall be 14 considered saturated if standing water is present or the pressure of a person standing 15 on the soil causes the release of free water. 16 15. "Slow- Release'; "Controlled Release', "Timed Release'; "Slowly - 17 Available ", or "Water Insoluble Nitrogen" means nitrogen in a form which delays its 18 availability for vegetative uptake and use after application, or which extends its 19 availability to the vegetation longer than a reference rapid or quick release product. 20 16. "Turf ; "Sod'; or "Lawn" means an area of grass- covered soil held together 21 by the roots of the grass. 22 17. "Urban Landscape" means pervious areas on residential, commercial, 23 industrial, institutional, highway rights -of -way, or other nonagricultural lands that are 24 planted with turf or landscape plants. For the purposes of this section, agriculture has 25 the same meaning as provided in section 570.02, Florida Statutes. 26 SECTION III. FINDINGS 27 As a result of the Florida Department of Environmental Protection's determination 28 that certain water bodies within Palm Beach County are impaired for excessive nutrient 29 levels, the Town Commission of the Town of Gulf Stream finds that the best 30 management practices contained in the most recent edition of the "Florida- Friendly Best 31 Management Practices for Protection of Water Resources by the Green Industries ", are 32 required in this Ordinance. E 1 SECTION IV. PURPOSE AND INTENT 2 This Ordinance regulates the proper use of fertilizers by any applicator; requires 3 proper training of commercial and institutional fertilizer applicators; establishes training 4 and licensing requirements; establishes a Prohibited Application Period; and specifies 5 allowable fertilizer application rates and methods, fertilizer -free zones, and exemptions. 6 This Ordinance requires the use of Best Management Practices to minimize negative 7 environmental effects associated with excessive nutrients in our water bodies. These 8 environmental effects have been observed in and on Palm Beach County's natural and 9 constructed stormwater conveyances, rivers, creeks, canals, lakes, estuaries and other 10 water bodies. Collectively, these water bodies are an asset important to the 11 environmental, recreational, cultural and economic well -being of Palm Beach County 12 residents and the health of the public. Overgrowth of algae and vegetation hinder the 13 effectiveness of flood attenuation provided by natural and constructed stormwater 14 conveyances. Regulation of nutrients, including both phosphorus and nitrogen 15 contained in fertilizer, is anticipated to help improve and maintain water and habitat 16 quality. 17 SECTION V. APPLICABILITY 18 This Ordinance shall be applicable to and shall regulate any and all applicators of 19 fertilizer and areas of application of fertilizer to urban landscapes within the Town of 20 Gulf Stream, unless such application is specifically exempted by Section XII of this 21 Ordinance. This Ordinance shall be prospective only, and shall not impair any existing 22 contracts. 23 SECTION VI. TIMING OF FERTILIZER APPLICATIONS 24 1. No applicator shall apply fertilizers containing nitrogen and /or phosphorus 25 to turf and /or landscape plants during the Prohibited Application Period or to saturated 26 soils. 27 2. Fertilizer containing nitrogen and /or phosphorus shall not be applied 28 before seeding or sodding a site, and shall not be applied for the first thirty (30) days 29 after seeding or sodding, except when hydro- seeding for temporary or permanent 30 erosion control in an emergency situation (wildfire, etc.), or in accordance with the 31 Stormwater Pollution Prevent Plan for that site. 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 SECTION VII. FERTILIZER FREE ZONES Fertilizer shall not be applied within ten (10) feet, or three (3) feet if a deflector shield or drop spreader is used, of any pond, stream, water body, lake, canal, or wetland as defined by the Florida Department of Environmental Protection (Chapter 62- 340), Florida Administrative Code or from the top of a seawall or lake bulkhead. Newly planted turf or landscape plants may be fertilized in this zone only for a sixty (60) day period beginning thirty (30) days after planting if needed to allow the vegetation to become well established. Caution shall be used to prevent direct deposition of fertilizer into the water. SECTION VIII. FERTILIZER CONTENT AND APPLICATION RATES 1. Fertilizers applied to turf within the Town of Gulf Stream shall be applied in accordance with requirements and directions provided by Rule 5E- 1.003(2), Florida Administrative Code, Labeling Requirements For Urban Turf Fertilizers. Under Rule 5E- 1.003(2), Florida Administrative Code, required application rate and frequency maximums, which vary by plant and turf types, are found on the labeled fertilizer bag or container. 2. Nitrogen or phosphorus fertilizer shall not be applied to turf or landscape plants except as provided in section (1) above for turf, or in OF /IFAS recommendations for landscape plants, vegetable gardens, and fruit trees and shrubs, unless a soil or tissue deficiency has been verified by an approved test. 3. Fertilizer used for sports turf at golf courses shall be applied in accordance with the recommendations in "Best Management Practices for the Enhancement of Environmental Quality on Florida Golf Courses ", published by the Florida Department of Environmental Protection, dated January 2007, as may be amended. Fertilizer used at park or athletic fields shall be applied in accordance with Rule 5E- 1.003(2), Florida Administrative Code. SECTION IX. FERTILIZER APPLICATION PRACTICES 1. As required in Section VII of this Ordinance, spreader deflector shields shall be used when fertilizing via rotary (broadcast) spreaders. Deflectors must be positioned such that fertilizer granules are deflected away from all impervious surfaces, fertilizer -free zones and water bodies, including wetlands. Any fertilizer applied, spilled, no 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 or deposited, either intentionally or accidentally, on any impervious surface shall be immediately and completely removed to the greatest extent practicable. 2. Fertilizer released on an impervious surface must be immediately contained and either legally applied to turf or any other legal site, or returned to the original or other appropriate container. 3. In no case shall fertilizer be washed, swept, or blown off impervious surfaces into stormwater drains, ditches, conveyances, or water bodies. 4. Property owners and managers are encouraged to use an Integrated Pest Management (IPM) strategy as currently recommended by the University of Florida Cooperative Extension Service publications. SECTION X. MANAGEMENT OF GRASS CLIPPINGS AND VEGETATIVE MATTER In no case shall grass clippings, vegetative material, and /or vegetative debris intentionally be washed, swept, or blown on to or into stormwater drains, ditches, conveyances, water bodies, wetlands, sidewalks or roadways. . Vegetative material may be placed within the roadway right -of -way, but not over the storm drains, for pickup by the municipality's vegetative waste hauler. SECTION XI. TRAINING 1. All commercial and institutional applicators of fertilizer within Palm Beach County shall abide by and successfully complete the six -hour training program in the "Florida- Friendly Best Management Practices for Protection of Water Resources by the Green Industries" offered by the Florida Department of Environmental Protection through the University of Florida /Palm Beach County Cooperative Extension Service "Florida- Friendly Landscapes" program or an approved equivalent program. 2. Non - commercial and non - institutional applicators not otherwise required to be certified, such as private citizens on their own residential property, are encouraged to follow the recommendations of the University of Florida /IFAS "Florida- Friendly Landscape Program" and label instructions when applying fertilizers. SECTION XII. LICENSING OF COMMERCIAL APPLICATORS 1. All businesses applying fertilizer to turf or landscape plants (including, but not limited to, residential lawns, golf courses, commercial properties, and multi - family and condominium properties) must ensure that the business owner or his /her designee holds the appropriate "Florida- Friendly Best Management Practices for Protection of A 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 Water Resources by the Green Industries" training certificate prior to the business owner obtaining a Local Business Tax Certificate. Owners for any category of occupation which may apply any fertilizer to Turf and /or Landscape Plants shall provide proof of completion of the program to the Town of Gulf Stream Tax Collector's Office. It is the responsibility of the business owner to maintain the "Florida- Friendly Best Management Practices for Protection of Water Resources by the Green Industries" certificate to receive their Business Tax Receipt annually. 2. After December 31, 2013, all commercial applicators of fertilizer within the Town of Gulf Stream shall have and carry in their possession at all times when applying fertilizer, evidence of certification by the Florida Department of Agriculture and Consumer Services as a Commercial Fertilizer Applicator per Rule 5E- 14.117(18), Florida Administrative Code. 3. All businesses applying fertilizer to turf and /or landscape plants (including, but not limited to, residential lawns, golf courses, commercial properties and multi - family and condominium properties) must ensure that at least one (1) employee has an appropriate "Florida- Friendly Best Management Practices for Protection of Water Resources by the Green Industries" training certificate prior to the business owner obtaining a Local Business Tax Certificate. Standard Business Tax Receipt (BTR and transaction fees shall apply). SECTION XIII. ENFORCEMENT The provisions of this Ordinance shall be enforced by (1) the Town of Gulf Stream Special Master pursuant to the authority granted by Section 162.01 et. seq., Florida Statutes, as may be amended and Article 10 of the Unified Land Development Code, as may be amended, or (2) by the Town Commission of the Town of Gulf Stream through its authority to enjoin and restrain any person violating the Unified Land Development Code. The Town may pursue these or any other enforcement remedies available to and applicable to the Town of Gulf Stream. SECTION XIV. PENALTIES 1. Failure to comply with the requirements of this Ordinance shall constitute a violation of this Ordinance and shall be punishable by a fine not to exceed $250 per incident for the violation, or a fine not to exceed $500 per incident for a repeat violation, and, in addition, may include all costs of repairs and remediation, including 8 1 administrative costs. Each new day the violation exists shall be considered a separate 2 incident. If the Special Master finds the violation to be irreparable or irreversible in 3 nature, it may impose a fine not to exceed $5,000.00 per violation. 4 2. Funds generated by penalties imposed under this Ordinance shall be used 5 by the Town of Gulf Stream for the administration and enforcement of Section 6 403.9337, Florida Statues, and the corresponding Sections of this Ordinance, and to 7 further water conservation and nonpoint pollution prevention activities. 8 SECTION XV. APPEAL 9 An aggrieved party, including the Town of Gulf Stream, may appeal a final 10 administrative order of a Special Master to the circuit court. Such an appeal shall not be 11 a hearing de novo, but shall be limited to appellate review of the record created before 12 the Special Master. An appeal shall be filed within thirty (30) days of the execution of 13 the order to be appealed. 14 SECTION XVI. SEVERABILITY 15 If any section, paragraph, sentence, clause, phrase, or word of this Ordinance is 16 for any reason held by a Court of competent jurisdiction to be unconstitutional, 17 inoperative, or void, such holding shall not affect the remainder of this Ordinance. 18 SECTION XVII. INCLUSION IN THE CODE OF LAWS AND ORDINANCES 19 The provisions of this Ordinance shall become and be made a part of the Town 20 of Gulf Stream Code. The sections of this Ordinance may be renumbered or relettered 21 to accomplish such, and the word "ordinance" may be changed to "section ", "article ", or 22 other appropriate word. 23 SECTION XVIII. CAPTIONS 24 The captions, section headings, and section designations used in this Ordinance 25 are for convenience only and shall have no effect on the interpretation of the provisions 26 of this Ordinance. 27 SECTION XIX. EFFECTIVE DATE 28 The provisions of this Ordinance shall become effective upon filing with the 29 Department of State. 9 I W 3 PASSED AND ADOPTED in a regular, adjourned session on first reading this 13th day of January , 2012, and for a second and final reading on this loth day of February , 20 12 Vice Commissione Y Q, A & Av Com ' %ioner Yom.. Commissioner ATTEST: Clerk APPROVED AS TO FORM AND LEGAL SUFFIQ+ENCY By: y Town Attorn EFFECTIVE DATE: Filed with the Department of State on the t' ° day of -e b. , 20i? pAdocs \13147\00001 \doc \i c21682.doc 10