August 2, 2021

Volume XI, Number 214

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July 30, 2021

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Massachusetts Regulates Fertilizer Use to Reduce Nutrient Water Pollution

Following a developing trend around the country, the Massachusetts Department of Agriculture (DAR) recently promulgated regulations restricting how fertilizers containing phosphorous, nitrogen or potassium may be applied.  The goal of these regulations is to reduce nutrient loading to waterbodies, which can lead to eutrophication and other negative water quality impacts.

The regulations, promulgated at 330 CMR 31.00, were authorized by Chapter 262 of the Acts of 2012 (An Act Relative to the Regulation of Plant Nutrients).  While restricting both, the regulations distinguish between agricultural and non-agricultural uses of fertilizers.  For non-agriculture fertilizer uses, fertilizers containing more than 0.67% phosphate by weight (excluding compost and organic fertilizers) are restricted in various ways, including:

  • Other than to establish new or renovate existing lawns or non-agricultural turf, phosphorous-containing fertilizers can only be used where needed to promote growth, as demonstrated by a soil test taken within the last three years.
  • Applications of phosphorous-containing fertilizers cannot be made between Dec. 1 and March 1.
  • Applications of phosphorous-containing fertilizers must comply with various setbacks from waterbodies, water supply sources and impervious areas.
  • Soil tests must follow sampling and laboratory procedures recommended by the University of Massachusetts Amherst Extension.
  • Except for “non-professional applications,” fertilizer use records must be kept for a three-year period.
  • Retailers must display phosphorous-containing fertilizers separately from non-phosphorous containing fertilizers and must post signs regarding restrictions on the use of  phosphorous-containing fertilizers.
  • DAR may impose penalties of up to $1,000 for violations of the regulations (with each day of violation constituting a separate offense).

A number of waterbodies in Massachusetts are subject to nutrient Total Daily Maximum Load(TMDL) standards, which seek to reduce the discharge of phosphorous, nitrogen and other nutrients into those waterbodies.  The fertilizer use regulations should prove to be an important control over one source of these nutrients – though it may take some time before the impact of these restrictions on water quality can be fully determined.

The United States Environmental Protection Agency is finalizing its NPDES stormwater discharge permit for Massachusetts Small Municipal Separate Storm Sewer Systems (Small MS4s).  For Small MS4s in the Charles River Watershed, that permit will likely require Small MS4 operators to prepare and implement a Phosphorous Control Plan to achieve the nutrient TMDLs for the Upper/Middleand Lower Charles River.  The fertilizer use regulations should assist Small MS4 operators with preparing compliant and effective Phosphorous Control Plans.

©2021 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume V, Number 198
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About this Author

Greenberg Traurig’s Environmental Practice assists clients across industries with issues surrounding the environmental and natural resource laws that impact their businesses. We assist in transactions, enforcement actions, litigation, regulatory compliance, crisis management, legacy cleanups, market access, and environmental policy challenges. Our team’s expansive geographic footprint and depth of experience provides effective solutions for clients facing environmental challenges.

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