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Agenda Item 8EAGENDA ITEM # 8E SEPTEMBER 9, 2013 CITY OF ATLANTIC BEACH CITY COMMISSION MEETING STAFF REPORT AGENDA ITEM: Proposed Ordinance for Florida Friendly Fertilizer Use SUBMITTED BY: Rick Carper, P.E., Public Works Director DATE: August 19, 2013 STRATEGIC PLAN LINK: None. BACKGROUND: The City's Municipal Separate Storm Sewer System (MS4) Permit requires that we implement a fertilizer control ordinance based on the FDEP Model Ordinance For Florida - Friendly Use of Fertilizer on Urban Landscapes. This proposed ordinance is intended to regulate the proper use of fertilizers by requiring training for commercial applicators and City employees who apply fertilizers and to provide guidance on environmentally friendly methods of using fertilizers. The Ordinance requires Applicators to use Best Management Practices which provide specific management guidelines to minimize negative secondary and cumulative environmental effects associated with the misuse of fertilizers. This ordinance will not restrict homeowners or residents from applying fertilizers on their landscape as they deem necessary; but they are strongly recommended to follow the guidelines included in the ordinance. Excerpt below is copied from Atlantic Beach's current MS4 Permit issued June 1, 2011: MS4 Permit FLS000012 -003 Part III.A STORMWATER MANAGEMENT PROGRAM: 6. Pesticides, Herbicides, and Fertilizer Application. ".... all local governments within the watershed of a nutrient- impaired water body shall adopt the Department's Model Ordinance for Florida- Friendly Fertilizer Use on Urban Landscapes pursuant to SB 494 (2009) or an ordinance that includes all of the requirements set forth in the Model Ordinance. The ordinance shall be adopted within 24 months of the date of permit issuance." RECOMMENDATION: Direct Staff to bring proposed ordinances back for First Reading. BUDGET: This ordinance are not anticipated to require any dedicated funding to enforce, with most actions taken as a result of observations by Public Works Streets and Stormwater crews or Code Enforcement Staff during the course of normal duties. Estimates of Staff time required have not been made, but the need will decrease over time as Commercial Applicators become familiar with the requirements ATTACHMENT: (1) Draft Ordinance (2) MS4 Permit Section 6 (excerpt) containing ordinance requirement REVIEWED BY CITY MANAGER: AGENDA ITEM 8E SEPTEMBER 9, MODEL ORDINANCE FOR FLORIDA - FRIENDLY USE OF FERTILIZER ON URBAN LANDSCAPES 1. FINDINGS As a result of impairment to the City of Atlantic Beach's surface waters caused by excessive nutrients, or, as a result of increasing levels of nitrogen in the surface and/or ground water within the aquifers or springs within the boundaries of the City of Atlantic Beach, the governing body of the City of Atlantic Beach has determined that the use of fertilizers on lands within the City of Atlantic Beach creates a risk to contributing to adverse effects on surface and /or ground water. Accordingly, the City Commission of the City of Atlantic Beach finds that management measures contained in the most recent edition of the "Florida-friendly Best Management Practices for Protection of Water Resources by the Green Industries, 2008, " may be required by this ordinance. 2. PURPOSE AND INTENT This Ordinance regulates the proper use of fertilizers by any applicator; requires proper training of Commercial and Institutional Fertilizer Applicators; establishes training and licensing requirements; establishes a Prohibited Application Period; specifies allowable fertilizer application rates and methods, fertilizer -free zones, low maintenance zones, and exemptions. The Ordinance requires the use of Best Management Practices which provide specific management guidelines to minimize negative secondary and cumulative environmental effects associated with the misuse of fertilizers. These secondary and cumulative effects have been observed in and on the City of Atlantic Beach's natural and constructed stormwater conveyances, rivers, creeks, ponds, and other water bodies. Collectively, these water bodies are an asset critical to the environmental, recreational, cultural and economic well -being of the City of Atlantic Beach residents and the health of the public. Overgrowth of algae and vegetation hinder the effectiveness of flood attenuation provided by natural and constructed stormwater conveyances. Regulation of nutrients, including both phosphorus and nitrogen contained in fertilizer, will help improve and maintain water and habitat quality. 3. DEFINITIONS For this Article, the following terms shall have the meanings set forth in this section unless the context clearly indicates otherwise. "Administrator" means the City of Atlantic Beach City Manager, or an administrative official of the City of Atlantic Beach government designated by the City Manager to administer and enforce the provisions of this Article. "Application" or "Apply" means the actual physical deposit of fertilizer to turf or landscape plants, whether solid or liquid product is used. AGENDA ITEM # 8E SEPTEMBER 9, 2013 "Applicator" means any Person who applies fertilizer on turf and/or landscape plants in the City of Atlantic Beach. "Board or Governing Board" means the City Commission of the City of Atlantic Beach, Florida. "Best Management Practices" means turf and landscape practices or combination of practices based on research, field- testing, and expert review, determined to be the most effective and practicable on- location means, including economic and technological considerations, for improving water quality, conserving water supplies and protecting natural resources. "Code Enforcement Officer, Official, or Inspector" means any designated employee or agent of the City of Atlantic Beach whose duty it is to enforce codes and ordinances enacted by the City of Atlantic Beach. "Commercial Fertilizer Applicator ", except as provided in 482.1562(9) F.S., means any person who applies fertilizer for payment or other consideration to property not owned by the person or firm applying the fertilizer or the employer of the applicator. "Fertilize," "Fertilizing," or "Fertilization" means the act of applying fertilizer to turf, specialized turf, or landscape plants. "Fertilizer" means any substance or mixture of substances that contains one or more recognized plant nutrients and promotes plant growth, or controls soil acidity or alkalinity, or provides other soil enrichment, or provides other corrective measures to the soil. "Guaranteed Analysis" means the percentage of plant nutrients or measures of neutralizing capability claimed to be present in a fertilizer. "Institutional Applicator" means any person, other than a private, non - commercial or a Commercial Applicator (unless such definitions also apply under the circumstances), that applies fertilizer for the purpose of maintaining turf and/or landscape plants. Institutional Applicators shall include, but shall not be limited to, owners, managers or employees of public lands, schools, parks, religious institutions, utilities, industrial or business sites and any residential properties maintained in condominium and/or common ownership. "Landscape Plant" means any native or exotic tree, shrub, or groundcover (excluding turf). "Low Maintenance Zone" means an area a minimum of ten (10) feet wide adjacent to water courses which is planted and managed in order to minimize the need for fertilization, watering, mowing, etc. "Person" means any natural person, business, corporation, limited liability company, partnership, limited partnership, association, club, organization, and /or any group of people acting as an organized entity. AGENDA ITEM # 8E SEPTEMBER 9, 2013 "Prohibited Application Period" means the time period during which a Flood Watch or Warning, or a Tropical Storm Watch or Warning, or a Hurricane Watch or Warning is in effect for any portion of Atlantic Beach, issued by the National Weather Service, or if heavy rainl is likely. (World Meteorological Organization definition of heavy rain: Rainfall greater than or equal to 2 inches in a 24 hour period. http:/ /severe.worldweather.org/rain/, and forecast keyword "likely", http: / /www.wrh.noaa.gov /sew /MediaGuide /TermsOutlooks Watches Warnings.pdf.) "the City of Atlantic Beach Approved Best Management Practices Training Program" means a training program approved per 403.9338 F.S., or any more stringent requirements set forth in this Article that includes the most current version of the Florida Department of Environmental Protection's "Florida friendly Best Management Practices, for Protection of Water Resources by the Green Industries, 2008, " as revised, and approved by the City of Atlantic Beach Public Works Director. "Saturated soil" means a soil in which the voids are filled with water. Saturation does not require flow. For the purposes of this ordinance, soils shall be considered saturated if standing water is present or the pressure of a person standing on the soil causes the release of free water. "Slow Release," "Controlled Release," "Timed Release," "Slowly Available," or "Water Insoluble Nitrogen" means nitrogen in a form which delays its availability for plant uptake and use after application, or which extends its availability to the plant longer than a reference rapid or quick release product. "Turf," "Sod," or "Lawn" means a piece of grass- covered soil held together by the roots of the grass. "Urban landscape" means pervious areas on residential, commercial, industrial, institutional, highway rights -of -way, or other nonagricultural lands that are planted with turf or horticultural plants. 4. APPLICABILITY This Ordinance shall be applicable to and shall regulate any and all applicators of fertilizer and areas of application of fertilizer within the area of the City of Atlantic Beach, unless such applicator is specifically exempted by the terms of this Ordinance from the regulatory provisions of this Ordinance. This ordinance does not restrict any homeowner or residents from applying fertilizers on their landscape as they deem necessary, but they are strongly recommended to follow the guidelines included herein. This Ordinance shall be prospective only, and shall not impair any existing contracts. [Guidance: In 403.9336, the Legislature further finds that local conditions, including variations in the types and quality of water bodies, site - specific soils and geology, and urban or rural densities and characteristics, may necessitate the implementation of additional or more stringent fertilizer management practices at the local government level. Local government may adopt additional or more stringent provisions to the model ordinance as provided in 403.9337(2). However, the local government should consider the disadvantages of confusing jurisdictional differences and should clearly demonstrate they meet the required criteria: (2) Each county and municipal government located within the watershed of a water body or water segment that is listed as impaired by nutrients pursuant to s. 403.067, shall, at a minimum, adopt the department's Model Ordinance for Florida - Friendly Fertilizer Use on Urban Landscapes. A local government may adopt additional or more stringent standards than the model ordinance if the following criteria are met: o (a) The local government has demonstrated, as part of a comprehensive program to address nonpoint sources of nutrient pollution which is science based, and economically and technically feasible, that additional or more stringent standards than the model ordinance are necessary in order to adequately address urban fertilizer contributions to nonpoint source nutrient loading to a water body. o (b) The local government documents that it has considered all relevant scientific information, including input from the department, the institute, the Department of Agriculture and Consumer AGENDA ITEM it 8E SEPTEMBER 9, 2013 Services, and the University of Florida Institute of Food and Agricultural Sciences, if provided, on the need for additional or more stringent provisions to address fertilizer use as a contributor to water quality degradation. All documentation must become part of the public record before adoption of the additional or more stringent criteria.) [Guidance: Florida Statues 125.568(3), 166.048(3), 373.185(3), 720.3075(4), and others provide that a local ordinance, deed restriction or covenant may not prohibit or be enforced so as to prohibit any property owner from implementing Florida - friendly landscaping on his or her land or create any requirement or limitation in conflict with any provision of part II of this chapter {373} or a water shortage order, other order, consumptive use permit, or rule adopted or issued pursuant to Chapter 373 part II] [Guidance: Florida Statues 482.156 and 482.1562. Neither the Limited Commercial Landscape Maintenance Certification Prograni nor the Limited Certification for Urban Landscape Commercial Fertilizer Application allows landscape maintenance workers to make any kind of pesticide applications (including weed control and /or weed and, feed products) to any turf areas.] 5. TIMING OF FERTILIZER APPLICATION No applicator shall apply fertilizers containing nitrogen and /or phosphorus to turf and/or landscape plants during the Prohibited Application Period, or to saturated soils. [Guidance: One of the most controversial issues associated with recent fertilizer ordinances enacted by local governments is the definition of the Prohibited Application Period. Some ordinances have prohibited the application offertilizer, even slow release formulations, during the summer rainy season, typically June 1 to Septeniber 30. The reasoning is that rain occurs frequently, saturating the soil, leading to more runoff. Saturated soils are prone to runoff or leaching with little or no additional water, and pose a higher than normal risk until soil moisture capacity is restored. Fertilizer management is largely about keeping the nitrogen and /or phosphorus in the root zone where it can be used by plants. Periods of heavy rainfall contribute to leaching, which is washing nutrients out of the root zone, and to runoff especially in areas with compacted or bare soils and significant slope. Vegetative ground cover is important to minimizing erosion, filtering particulates, and incorporating or promoting the biological transformation of potential pollutants. Many variables influence the relationship between fertilizer rates, vegetation health and nutrient enrichment of surface and ground waters. Accordingly, sound science and carefully reasoned judgment are recommended in determining how to define the Prohibited Application Period.) 6. FERTILIZER FREE ZONES Fertilizer shall not be applied within ten (10) feet of any pond, stream, watercourse, pond, 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, unless a deflector shield, drop spreader, or liquid applicator with a visible and sharply defined edge, is used, in which case a minimum of 3 feet shall be maintained. If more stringent City of Atlantic Beach Code regulations apply, this provision does not relieve the requirement to adhere to the more stringent regulations. Newly planted turf and /or landscape plants may be fertilized in this Zone only for a sixty (60) day period beginning 30 days after planting if need to allow the plants to become well established. Caution shall be used to prevent direct deposition of nutrients into the water. [Guidance: This zone is a setback to prevent the applicator from inadvertently depositing fertilizer in the water while performing the application. It is not designed as a treatment buffer, and is to be adhered to as a fundamental environmental safety aspect of the applicator's job, regardless of the owner's desires. Some communities have existing residential setbacks of as little as 10 feet, from water or seawall. Low maintenance zones, vegetated filter strips, and riparian buffers are strongly encouraged, but such activities are rightly a part of land use planning. Local governments are encouraged to implement these low- impact development practices where AGENDA ITEM # 8E SEPTEMBER 9, 2013 feasible.] 7. LOW MAINTENANCE ZONES A voluntary ten (10) foot low maintenance zone is strongly recommended, but not mandated, from any pond, stream, water course, lake, wetland or from the top of a seawall. A swale /berm system is recommended for installation at the landward edge of this low maintenance zone to capture and filter runoff. If more stringent City of Atlantic Beach Code regulations apply, this provision does not relieve the requirement to adhere to the more stringent regulations. No mowed or cut vegetative material may be deposited or left remaining in this zone or deposited in the water. Care should be taken to prevent the over -spray of aquatic weed products in this zone. [Guidance: Care must be taken to ensure erosion of the surface soil does not occur. Excessive erosion may be a greater pollution hazard than occasional proper applications offertilizer] 8. FERTILIZER CONTENT AND APPLICATION RATES [Guidance: RULE 5E- 1.003(2)(d), F.A.Ccontains the. following provisions for golf courses, parks and athletic fields. As such, no additional specific requirements are included for these .types of urban turf. The appropriate Best Management Practices listed below must be followed on such sites for nutrient management activities: (d) Fertilizers labeled for sports turf at golf courses, parks and athletic fields shall: 1. Have directions for use not to exceed rates recommended in the document titled SL191 "Recommendations for N P, K and Mg for Golf Course and Athletic Field Fertilization Based on Mehlich I Extractant"; dated March 2007, which is hereby adopted and incorporated by reference into this rule. Copies may be obtained from the Soil and Water Science Department, Florida Cooperative Extension Service, Institute of Food and Agricultural Sciences, University of Florida, Gainesville, FL 32611 or the following website: http: / /edis.ifas.ufl.edu /SS404. 2. Have directions for use in accordance with the recommendations in `BMP's for the Enhancement of Environmental Quality on Florida Golf Courses", published by the Florida Department of Environmental Protection, dated January 2007. Note that this does not exempt applicators at these sites from the required basic Green Industry BMP training. Information on this is located at http: / /fyn.ifas.ufl. edu /professionals /BMP overview.htm. (a) Fertilizers applied to turf within the City of Atlantic Beach shall be formulated and applied in accordance with requirements and directions provided by Rule 5E- 1.003(2), Florida Administrative Code, Labeling Requirements for Urban Turf Fertilizers. (b) Fertilizer containing nitrogen or phosphorus shall not be applied before seeding or sodding a site, and shall not be applied for the first 30 days after seeding or sodding, except when hydro- seeding for temporary or permanent erosion control in an emergency situation (wildfire, etc.), or in accordance with the Stormwater Pollution Prevention Plan for that site. (c) Nitrogen or phosphorus fertilizer shall not be applied to turf or landscape plants except as provided in (a) 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. 9. APPLICATION PRACTICES a. Spreader deflector shields are required when fertilizing via rotary (broadcast) spreaders. Deflectors must be positioned such that fertilizer granules are deflected away from all streets, driveways and other impervious surfaces, fertilizer -free zones and water bodies, including wetlands. b. Fertilizer shall not be applied, spilled, or otherwise deposited on any impervious surfaces. c. Any fertilizer applied, spilled, or deposited, either intentionally or accidentally, on any impervious surface shall be immediately and completely removed to the greatest extent practicable. AGENDA ITEM # 8E SEPTEMBER 9, 2013 d. 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. e. In no case shall fertilizer be washed, swept, or blown off impervious surfaces into stormwater drains, ditches, conveyances, or water bodies. 10. MANAGEMENT OF GRASS CLIPPINGS AND VEGETATIVE MATTER In no case shall grass clippings, vegetative material, and /or vegetative debris be washed, swept, or blown off into stormwater drains, ditches, conveyances, water bodies, wetlands, or sidewalks or roadways. Any material that is accidentally so deposited shall be immediately removed to the maximum extent practicable. 11. EXEMPTIONS The provisions set forth above in this Ordinance shall not apply to: (a) bona fide farm operations as defined in the Florida Right to Farm Act, Section 823.14 Florida Statutes; (b) other properties not subject to or covered under the Florida Right to Farm Act that have pastures used for grazing livestock; (c) any lands used for bona fide scientific research, including, but not limited to, research on the effects of fertilizer use on urban stonnwater, water quality, agronomics, or horticulture. 12. TRAINING (a) All commercial and institutional applicators of fertilizer within the City of Atlantic Beach, 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 Extension "Florida- Friendly Landscapes" program, or an approved equivalent. (b) Private, non - commercial applicators are encouraged to follow the recommendations of the University of Florida IFAS Florida Yards and Neighborhoods program when applying fertilizers. 13. LICENSING OF COMMERCIAL APPLICATORS (a) Prior to 1 January 2014, all commercial applicators of fertilizer within the City limits of Atlantic Beach, shall abide by and successfully complete training and continuing education requirements 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 IFAS "Florida- friendly Landscapes" program, or an approved equivalent program, prior to obtaining a the City of Atlantic Beach Local Business Tax Certificate for any category of occupation which may apply any fertilizer to turf and/or landscape plants. Commercial Fertilizer Applicators shall provide proof of completion of the program to the City of Atlantic Beach City Clerk's office within 180 days of the effective date of this ordinance. (b) After 31 December, 2013, all commercial applicators of fertilizer within the (un)incorporated area of the City of Atlantic Beach, 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 5E- 14.117(18) F.A.C. AGENDA ITEM # 8E SEPTEMBER 9, 2013 (c) 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 employee has a "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. 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 City of Atlantic Beach Public Works Director. 14. ENFORCEMENT The Police Department, the Public Works Department, and the Code Enforcement Officer, shall enforce this chapter. All parties h are authorized to sign complaints for violation of this chapter. Violations and penalties. The violation of any provision of this chapter may be punished by a fine as indicated below. Said fine will be imposed on the Contractor employing the Applicator or Lawn Maintenance Worker found to be in violation. Fines will be cumulative on the Contractor regardless of whether different operators are cited Schedule of fines. The following schedule of fines may be assessed in cases of violations of Fertilizer Application or Management of Grass Clippings and Vegetative Matter requirements occurring within the city: First offense within any 2 month period .... $100 Second offense within any 2 month period .... $250 Third offense within any 2 month period $ 500 Fourth or subsequent offense within any 2 month period .... $1000 Funds generated by penalties imposed under this section shall be used by the City of Atlantic Beach for the administration and enforcement of section 403.9337, Florida Statutes, and the corresponding sections of this ordinance, and to further water conservation and nonpoint pollution prevention activities. This Ordinance shall take effect on and shall be recorded in a book kept and maintained by the Clerk of the City of Atlantic Beach, Duval County, Florida, in accordance with Section 125.68, Florida Statutes. City of Jacksonville MS4 Final Permit STORMVVATER MANAGEMENT PROGRAM: 6. Pesticides, Herbicides, and Fertilizer Appii Permit Number: FLS000012 -003 ALL Except FDOT District Two Pursuant to SB 2080 (2009), all local governments are encouraged to adopt a Florida- friendly Landscaping Ordinance similar to the one set forth in the document "Florida - friendly Guidance Models for Ordinances, Covenants and Restrictions. This model ordinance incorporates Florida - friendly landscaping and irrigation design requirements, Florida- friendly fertilizer requirements, and training and certification requirements. If the broader Florida - friendly ordinance described above is not adopted, then all local governments within the watershed of a nutrient- impaired water body shall adopt the Department's Model Ordinance for Florida- Friendly Fertilizer Use on Urban Landscapes pursuant to SB 494 (2009) or an ordinance that includes all of the requirements set forth in the Model Ordinance. The ordinance shall be adopted within 24 months of the date of permit issuance. Provide a copy of the adopted ordinance with the subsequent Year 1 or Year 2 ANNUAL REPORT. ALL Except FDOT District Two During Year 1 of the pen:nit, develop and implement a written public education and outreach program plan to encourage citizens to reduce their use of pesticides, herbicides, and fertilizers. The plan shall include the distribution of public education materials describing the need to minimize the application of fertilizers, pesticides and herbicides, and promote actions such as incorporating Florida - friendly landscaping concepts into new landscaping projects. The plan shall also include the following: the goals and objectives of the program; the topics to be addressed; a description of the target audience(s); a description of the activities and materials (including clarification of which topics are to be addressed by each) to be employed to reach each target audience and In each ANNUAL REPORT, report on the public education and outreach activities that are performed or sponsored by the perrnittee within the perrnittee's jurisdiction to encourage citizens to reduce their use of pesticides, herbicides, and fertilizers, including the type and number of activities 38