CITY OF STUART, FLORIDA AGENDA ITEM REQUEST CITY COMMISSION

16. CITY OF STUART, FLORIDA AGENDA ITEM REQUEST CITY COMMISSION Prepared by: Sam Amerson, PE Title of Item: Fertilizer Ordinance Summary Explanation/Background Information on Agenda Request: Now that the Florida Department of Environmental Protection (FDEP) as adopted the Basin Management Action Plan (BMAP), and the city is in a position to demonstrate that its assigned Load Reduction Goals (LRGs) have been met with the implementation of a vast array of water quality Best Management Practices (BMPs). City staff is considering a recommendation to modify its February, 2011 Fertilizer Ordinance to further prohibit the application of fertilizer during the wet season. Restricting fertilizer application during this period is sometimes referred to as a "blackout period." This period was incorporated into ordinances that followed the adoption of the city ordinance. So, for example, Sewall's Point and Martin County ordinances both have a blackout period, while the city does not. Staff is seeking commissioner comments and direction regarding the inclusion of a "blackout period" in the City of Stuart Fertilizer Ordinance. Funding Source: N/A Recommended Action: Discussion and Deliberation ATTACHMENTS: Description Upload Date Type Ordinance No. 2222-2011 2/4/2014 Cover Memo Correspondence_Spitzer_FSA 2/4/2014 Cover Memo FDEP Comments Fertilizer Ordinance 2/4/2014 Cover Memo State Model Ordinance 2/4/2014 Cover Memo

From: Griffin, William Sent: Friday, January 31, 2014 11:24 AM To: Amerson, Sam; Leggett, Milton Subject: FW: City of Stuart - Florida Fertilizer Ordinance (Prohibited Application Period) Question FYI Response from Kurt below. It may help if you start reading at bottom of page first and work your way up. Kurt s opinion is that we don t have to have DEP approval to include a black out period in our ordinance. We have TP/TN documentation in our BMAP so that is relevant scientific information, and we have input from DEP, UF-IFAS, and DACS. Just a matter of does city want to add the blackout period to the existing fertilizer ordinance? Thanks, Bill From: Kurt Spitzer [mailto:kurtspitzer@ksanet.net] Sent: Thursday, January 30, 2014 5:23 PM To: Griffin, William Subject: RE: City of Stuart - Florida Fertilizer Ordinance (Prohibited Application Period) Question Furthermore.FDEP s comment (see highlighted area) is incorrect and misleading: Prohibited application period. This definition defines heavy rain differently and includes other more stringent conditions than the Model Ordinance. Pursuant to section 403.9337(2)(b), Fla. Stat., the City must have a scientific basis to be more stringent than the model. Subsection 403.9337(2)(b) says: 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 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. So, the statute says you have to consider relevant scientific information. It doesn t say must have a scientific basis for something different than the model. And NOWHERE does it say or imply that FDEP has some sort of approval authority over a policy decision of the City Commission. From: Kurt Spitzer Sent: Thursday, January 30, 2014 3:05 PM To: 'Griffin, William' Subject: RE: City of Stuart - Florida Fertilizer Ordinance (Prohibited Application Period) Question Nothing has changed. You should talk to your neighbors about how they defined science. In my opinion, that subsection is not worth the paper it s written on and DEP has no authority to reject an action of a local elected city commission who determines what a scientific basis is.

Here s mine: Without a blackout period, applicators making $10 per hour are under enormous pressure to get their daily schedules done. If it s going to rain later today or tomorrow, that really doesn t make allot of difference. In fact, we know of some places where applicators are caught fertilizing IN THE RAIN. So, while not perfect, the best way to police a don t fertilize when it rains policy is to have a blackout period. From: Griffin, William [mailto:wgriffin@ci.stuart.fl.us] Sent: Thursday, January 30, 2014 12:08 PM To: Kurt Spitzer Subject: RE: City of Stuart - Florida Fertilizer Ordinance (Prohibited Application Period) Question Attached is the comments letter received from DEP (page 2 of comments highlighted PAP) and copy of statute that was sent to me. The prohibited application period in the adopted city ordinance actually reads: Prohibited application period means the time period during which a hurricane watch, hurricane warning, tropical storm watch, tropical storm warning, flood watch, flood warning, severe thunderstorm watch, or severe thunderstorm warning is in effect for any portion of the City of Stuart, issued by the National Weather Service, of if rainfall greater than or equal to two (2) inches in a twenty-four (24) hour period is likely. The prohibited period I quoted below was from an earlier draft and stated 1 inch within 36 hours. DEP did not like that one either. From: Kurt Spitzer [mailto:kurtspitzer@ksanet.net] Sent: Thursday, January 30, 2014 10:50 AM To: Griffin, William Cc: Leggett, Milton Subject: RE: City of Stuart - Florida Fertilizer Ordinance (Prohibited Application Period) Question Can I see the letter or email that contained the comment? From: Griffin, William [mailto:wgriffin@ci.stuart.fl.us] Sent: Thursday, January 30, 2014 10:14 AM To: Kurt Spitzer Cc: Leggett, Milton Subject: City of Stuart - Florida Fertilizer Ordinance (Prohibited Application Period) Question Good Morning Kurt, Comments would be appreciated: City of Stuart staff has been recently informed that municipalities along Florida s east coast are jumping on the band wagon with adopting a fertilizer ordinance, which is commendable. We are hearing the municipalities are including a Prohibited Application Period more stringent than the model ordinance. Basically no application of fertilizer allowed from June 1 September 30.

The City of Stuart adopted its fertilizer ordinance in February of 2011 which includes the model ordinance language for the Prohibited Application Period. It reads fertilizer may not be applied by any person when, the time period during which rain or heavy rain (1 inch or more) is predicted by the National Weather Service (NWS) for any portion of the City of Stuart to occur within 36 hours, and includes a hurricane watch, hurricane warning, tropical storm watch, tropical storm warning, flood watch, flood warning, severe thunderstorm watch, or severe thunderstorm warning. Stuart s original draft ordinance contained verbiage stating that application of fertilizer is prohibited from June 1 through September 30 of each year, which is more stringent than the model ordinance. Comment back from FDEP stated that Pursuant to section 403.9337(2)(b), Fla. Stat., the City must have a scientific basis to be more stringent than the model. City staff revised the ordinance to include only the model language before presenting it to city commission for approval based on FDEP comment. It was our understanding back in 2011 that without local scientific evidence that fertilizer components are proven sources of pollution; the more stringent prohibited application would not be enforceable. The questions are has FDEP changed its stance since 2011 or are municipalities providing/documenting local scientific evidence specifically for fertilizer runoff? Thanks, Bill Griffin City of Stuart, Stormwater Program *Under Florida Law, email addresses are public records. If you do not want your email address released in response to a public records request, do not send electronic email to this entity. *Under Florida Law, email addresses are public records. If you do not want your email address released in response to a public records request, do not send electronic email to this entity.

Florida Department of Environmental Protection Bob Martinez Center 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Rick Scott Governor Jennifer Carroll Lt. Governor Mimi A. Drew Secretary January 6, 2011 Mr. Bill Griffin City of Stuart 121 S.W. Flagler Ave. Stuart, FL 34994 Dear Mr. Griffin, Thank you for your December 30 th submission of your draft fertilizer ordinance. The Department has reviewed Ordinance No. 2219-2011 and provides the following comments: Whereas preamble. DEP recommends making an additional finding that statutory changes since the original publication and new research support the use of the proposed 2010 DEP model ordinance revisions in lieu of the original language. Additional findings are also needed to support regulations more stringent than the 2009 model ordinance. Pursuant to section 403.9337(2)(b), Fla. Stat., the City must provide basis to be more stringent than the model ordinance, but it should be noted that DEP does not approve such findings. Sec. 20-160. Definitions. City of Stuart approved best management practices training program. This definition should provide for approved equivalent programs per section 403.9338(1)(b), Fla. Stat. Commercial fertilizer applicator. This definition is not consistent with the current statute. Please review section 482.021(6), Fla. Stat. and the 2010 DEP model ordinance revisions. Fertilizer free zone. This definition is more conservative than the DEP model when deflector shields or other methods are used to prevent deposition of fertilizer into the water. However, if this is consistent with local landscaping More Protection, Less Process www.dep.state.fl.us

Mr. Bill Griffin Page 2 January 6, 2011 code or development code requirements, such as for natural buffers, it would not be considered more stringent. Institutional applicator. DEP recommends changing the following to add employees : 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 or common ownership. Landscape plant. The DEP recommends adding turf, sod, and lawn in the exclusion, as these descriptions are used interchangeably based on the City s definition. Non-commercial applicator. This definition could conflict with the intent of Institutional Applicator when applying to non-residential property. If defined, DEP recommends that the definition read, any person not defined as a commercial or institutional applicator. Prohibited application period. This definition defines heavy rain differently and includes other more stringent conditions than the Model Ordinance. Pursuant to section 403.9337(2)(b), Fla. Stat., the City must have a scientific basis to be more stringent than the model. Sec. 20-161. Applicability. As worded, this provision appears to apply to all applicators. Is that what the ordinance intends? Sec. 20-162. Training. (a) This provision should provide for approved equivalent programs pursuant to section 403.9338(1)(b), Fla. Stat. Sec. 20-163. Timing of turf fertilizer applications. (a) This provision is ambiguous and appears to be more stringent than the model ordinance; it is not clear what soil tests are needed and how to interpret the results. This provision does not allow for fertigation, (possibly) reclaimed water irrigation or contract applications of small, controlled amounts of fertilizer, as is typical when 6-8 applications per year of 0.5 lb soluble N is applied by liquid spray.

Mr. Bill Griffin Page 3 January 6, 2011 Soil tests typically include phosphorus, ph, and micronutrients. It is not considered appropriate to test for nitrogen in sandy soils in Florida due to the high mobility of soluble nitrogen. Leaf tissue testing is required for accurate determination of plant nitrogen levels, but is complex and expensive compared to typical soil testing. Additionally, spring and fall are not very distinct time periods and are therefore also vague. Daylight length and soil temperature are the primary factors driving plant growth; those factors may be better, and more enforceable, indicators. Sec. 20-164. Fertilizer free zones. Please review the limits on fertilization within 30 days of planting in the 2010 proposed revisions to model ordinance. Sec. 20-165. Fertilizer content and application rates. (a) This provision states that For turf, a fertilizer should be used where the first and third number of the compound are equal or near equal and the middle number is zero or as low as possible. This appears vague and seemingly would be difficult to enforce. What is as low as possible and near equal? (b) The DEP recommends removing or landscape plants for the first line, as Rule 5E-1.003(2), F.A.C., does not address landscape plants other than turf. (c) The DEP recommends changing (a) to (b) in order to reference the correct provision. Additionally, we recommend that the City review the 2010 revisions for landscape plant language. (d) This section appears inaccurate and may reference an outdated IFAS publication. The Green Industry BMPs (2008, 2010) and the Golf Course BMPs (2007) provide current guidance. The Department recommends changing section (d) as follows: In accordance with Sec. 5E-1.003(2)(d), Florida Administrative Code, no more than 1.0 lb soluble total N per 1000 square feet, shall be applied at one time. Higher rates of N per 1000 square feet of application may be applied if it is a slow-release N composition mixture, but no more than 3 lbs soluble No more than 0.5 lb soluble N per 1000 square feet shall be applied in any one application, regardless of the fertilizer N source being applied.

Mr. Bill Griffin Page 4 January 6, 2011 (g) This provision may be confusing and unclear to the layperson. Additionally, it does not address the differing limits between total and soluble fertilizer. Rule 5E-1.003(2), F.A.C., prohibits sale of fertilizers for turf use unless labeled appropriately. Sec. 20-166. Soil testing by commercial applicators. The DEP makes the below suggested edits in strikethrough/underline format and poses the following questions for your consideration. Re: In February and September of each year, all commercial applicators operating within the city shall collect a minimum of one (1) soil sample from each application site they service within the city. Tthe total number of soil samples and sample locations shall be pre-approved by the director of public works. What will the Director be looking for and what criteria will he make his decision on? Why must every site be sampled, even where soils are similar within a subdivision? Why annually? What if they get a new customer, or lose a client already approved? Re: Samples shall be tested by a qualified professional laboratory for nutrient profile which that will include nitrogen ph and phosphorus analyses. Please be aware that soil tests are inappropriate for nitrogen and will not be provided in most cases. Re: The commercial applicator shall be responsible for following the recommendations of the laboratory report and for purchasing and applying any and all soil conditioners required. This may be beyond the scope of an applicator s ability or contract responsibilities. It may require a significant amount of material and heavy equipment to modify soil structure and ph for an entire property. Re: Laboratory test results shall be submitted to the director of public works no later than ten (10) days after receipt of the test results by the commercial applicator. It is suggested that records supporting non-standard fertilization practices be maintained and be subject to inspection rather than being submitted. Going beyond this measure is a regulatory option to be decided by the City. Sec. 20-168. Management of grass clippings and vegetative matter. The DEP makes the below suggested edits in strikethrough/underline format and poses the following questions for your consideration.

Mr. Bill Griffin Page 5 January 6, 2011 Grass clippings, vegetative material, and vegetative debris shall not be permitted to wash, be swept sweep, or be blown into stormwater drains, ditches, water bodies, wetlands, sidewalks, gutters or roadways. For enforcement purposes, consider changing to active voice so as to eliminate passive violations (e.g., as written, the provision implies that clippings left on lawn that the wind blows into storm drain is a violation). Consider: No person shall wash, sweep, or blow grass clippings, vegetative material, or vegetative debris into stormwater drains, ditches, water bodies, wetlands, sidewalks, gutters or roadways. Sec. 20-169. Exemption; farms. The DEP makes the below suggested edits in strikethrough/underline format and poses the following questions for your consideration. The provisions set forth above in this article shall not apply to bona fide farm operations as defined in the Florida Right to Farm Act, Section 823.14, Florida Statutes, provided that fertilizers are applied in accordance with the appropriate best management practices manual adopted by the Florida Department of Agriculture and Consumer Services, Office of Agricultural Water Policy for the crop in question. Urban turf ordinances should not regulate agriculture. Please refer to the 2010 model ordinance revisions. Sec. 20-170. Violations and penalties. (a) As written, this provision only provides a penalty to those persons who willfully get the applicator to violate ( offers or induces to violate ). If the City intends otherwise, this provision should be changed. If you have any questions, please do not hesitate to call Mike Thomas at (850) 245-7513. Sincerely, Thomas M. Frick Chief, Bureau of Watershed Restoration TMF/mt

403.9337 Model Ordinance for Florida-Friendly Fertilizer Use on Urban Landscapes.-- (1) All county and municipal governments are encouraged to adopt and enforce the Model Ordinance for Florida-Friendly Fertilizer Use on Urban Landscapes or an equivalent requirement as a mechanism for protecting local surface and groundwater quality. (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: (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. (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 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. 482.021 Definitions (6) "Commercial fertilizer application" means the application of fertilizer for payment or other consideration to property not owned by the person or firm applying the fertilizer or the employer of the applicator. 403.9338 Training. (1) The department, in cooperation with the Institute of Food and Agricultural Sciences, shall: (a) Provide training and testing programs in urban landscape best management practices and may issue certificates demonstrating satisfactory completion of the training. (b) Approve training and testing programs that are equivalent to or more comprehensive than the training provided by the department under paragraph (a). Such programs must be reviewed and reapproved by the department if significant changes are made. Currently approved programs must be reapproved by July 1, 2010. 482.1562 Limited certification for urban landscape commercial fertilizer application.-- (1) To provide a means of documenting and ensuring compliance with best management practices for commercial fertilizer application to urban landscapes, the department shall establish a limited certification for urban landscape commercial fertilizer application. (2) Beginning January 1, 2014, any person applying commercial fertilizer to an urban landscape must be certified under this section. (9) Yard workers who apply fertilizer only to individual residential properties using fertilizer and equipment provided by the residential property owner or resident are exempt from the requirements of this section.