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Saturday, January 18, 2020

City of Naples digs in, defends fertilizer ordinance against lawsuit threat


By Michael Carroll | Nov 21, 2019


NAPLES – The City of Naples is standing its ground after a group representing landscape businesses, lawn-care professionals and others vowed to sue city officials unless they revamp its controversial fertilizer ordinance.

An attorney representing the Environmental Research & Education Foundation Inc. (EREF) charged in a Nov. 5 letter to the city that a new ordinance regulating when nitrogen- and phosphorus-based fertilizers can be used runs counter to state law and sound science. But Naples City Attorney James Fox took issue with the foundation’s charges in a Nov. 13 response letter sent to the law firm Manson Bolves Donaldso Varn, based on a legal review he conducted.

“We are unable to conclude that there is anything legally impermissible about the city’s recent fertilizer ordinance,” Fox stated in the letter.

The foundation argues that cities are pre-empted from regulating the application of fertilizer, based on its reading of state law. But the city attorney was unable to find any “expressly stated” pre-emption, Fox said.

“We would suggest that any lawsuit is unlikely to survive a motion to dismiss and may be sanctionable under Section 57.105 of the Florida Statutes,” Fox’s letter states. “In any event, you should be advised that this office will vigorously defend the actions of the City of Naples.”

A key issue in the debate over the fertilizer ordinance is its strict ban on using the designated fertilizers during the rainy season, from June 1 to Sept. 30. EREF argues that nitrogen fertilizers applied within product guidelines help establish root systems and above-ground growth in the warm months, so that plants and lawns act as filters that better absorb the nutrients in fertilizers.

But others say that warm-season fertilizer applications can lead to a higher nutrient load in surrounding waters, increasing the chance of environmental problems such as algae blooms.

City council members listened to the arguments and made their determination that a blackout period was appropriate, Fox told the Florida Record.

“You can debate the degree to which nutrients cause red tide off our shores and degradation of the bays,” he said. “But there is no dispute that we have a lower water quality than we would want."

But EREF sees the city’s fertilizer regulations as running counter to long-term research conducted by the University of Florida Institute of Food & Agriculture Sciences, as well as findings of the Florida Department of Environmental Protection.

“The city’s ordinance risks turf health, which leads to less-efficient filtration of potential pollutants and greater runoff and will seriously undermine the protection of water quality,” attorney Brian Accardo, who represents EREF, said in the Nov. 5  letter to Naples officials.

Mac Carraway, EREF’s executive director, said the foundation has been monitoring such municipal ordinances in Florida for about a decade and has been making similar arguments.

“You still have certain local governments that embrace the rainy-season blackouts because they have a compelling sense that they need to do something,” Carraway told the Record.

In addition, the history of fertilizer regulations in Naples suggests that city officials are focusing on issues other than peer-reviewed science, Carraway said.

“The city passed this blackout years ago, repealed it in 2018 on their own – we had nothing to do with it – and then again in 2019 restored it,” Carraway said. “This suggests that there is something more at play than just the evidence.”

Typically, city fertilizer ordinances in the state exempt farms and golf courses from their restrictions, Carraway added. The result, he said, is that many landscape professionals who have followed best-practices programs for decades are discriminated against since they are covered by the ordinances.

And public concerns about such Florida environmental issues as the red tide remain high despite the passage of fertilizer restrictions in many cities around the state, he said.

“Many of the ordinances have been in place for 10 years, and they haven’t worked,” Carraway said.

University of Florida professor Laurie Trenholm, an urban turf grass specialist and the lead researcher on a 12-year study on fertilizer leaching, said that grass species with the deepest, densest root systems take up nutrients in the soil best in the warmer months.

“We saw very little nitrogen leach during the summer months,” Trenholm told the Record.

But she added that this is true only if the grass is in a healthy state and actively growing. If turf is spotty or sparse, fertilizer applications in the summer would not be absorbed as well, according to Trenholm.

In southern Florida locations such as Naples, three to four applications of fertilizer annually is typically recommended for St. Augustine grass, she said. So it could be counter-productive for a city to have a blanket ban on fertilizer applications in the rainy months, Trenholm said, adding that educational efforts on lawn care can also make a difference.

“If they just had a little more knowledge and insight into how our landscape plants and our turf grass grow, they could do things in a much better manner,” she said.

The fertilizer ordinances also do not deal with other sources of pollution and nutrient load, according to Trenholm, such as septic tanks and atmospheric deposition.

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